Royal Assent

The following Act was given Royal Assent:
	Corporation Tax Act.

Palace of Westminster: Pest Control
	 — 
	Question

Baroness Finlay of Llandaff: To ask the Chairman of Committees what measures are being considered to improve pest control in the Lords' part of the Palace of Westminster.

Lord Brabazon of Tara: My Lords, the administration is fully aware of the problem with mice in the Palace of Westminster and is taking all appropriate measures to minimise their numbers. We retain the services of an independent pest control consultant and a full-time pest controller. The current focus is on poisoning and trapping, blocking of mouse access points, and more frequent cleaning of bars and restaurants to remove food debris. This programme was intensified over the February Recess and fewer sightings of mice have been reported since.

Baroness Finlay of Llandaff: I thank the noble Lord for his reply. How many calls have there been to the mouse helpline? Has the accuracy of that information been checked, given that the staff report seeing mice on a daily basis at the moment in the eating areas? Has consideration been given to having hypoallergenic cats on the estate, given the history? Miss Wilson, when she was a resident superintendent in this Palace, had a cat that apparently caught up to 60 mice a night. The corpses were then swept up in the morning. Finally, does the noble Lord recognise the fire hazard that mice pose, because they eat through insulating cables? It would be a tragedy for this beautiful Palace to burn down for lack of a cat.

Lord Brabazon of Tara: My Lords, there are a number of questions there. I cannot give an answer to the number of calls made to the mouse helpline-if that is its title. I suspect that it would not be a good use of resources to count them up. But I am well aware of the problem of mice, as I said in my Answer. It is something that we take seriously.
	As for getting a cat, I answered a Question from the noble Lord, Lord Elton, last week on this matter. I was not aware that such a thing as a hypoallergenic cat existed-I do not know whether our cat at home is one of those. There are a number of reasons why it is not a good idea to have cats. First, they would ingest mouse poison when eating poisoned mice, which would not be very nice for them, and there would be nothing to keep them where they are needed or stop them walking around the House on desks in offices or on tables in restaurants and bars-and maybe even in the Chamber itself. Therefore, we have ruled out at this stage the possibility of acquiring a cat, or cats.

Lord Bradshaw: I have spoken continually to the staff in the eating places in the House and I acknowledge that there has been some diminution in the number of mice around. But could I press the noble Lord, because further action needs to be taken? I know that this is an old building, but mice are still here and we are talking about places where food is served. I have no magic solution, but perhaps the consultant who is being employed might have some answers.

Lord Brabazon of Tara: My Lords, I am well aware that there are still mice around. I saw one in the Bishops' Bar only yesterday evening. I do not know whether it was the same one that I saw the day before or a different one; it is always difficult to tell the difference between the various mice that one sees. We believe that the problem is getting better. Cleaning is one of the measures we are taking, as I outlined in my original Answer. As I speak here this afternoon, the Bishops' Bar and the Guest Room are being hoovered, so we can get rid of the food scraps from lunch. If you were a mouse, you would rather eat the crumbs of a smoked salmon sandwich than the bait. Therefore, we want to remove the crumbs as quickly as possible.

Lord Pilkington of Oxenford: Why should I and noble Lords trust the Executive to deal with mice when they cannot deal with the economy?

Lord Brabazon of Tara: My Lords, I do not actually deal with the economy. I am glad to say that that would be above my pay grade, whereas trying to deal with the mice is probably just about right for me.

Baroness Symons of Vernham Dean: My Lords, I was in total ignorance that there was anything of the nature of a mouse helpline until this Question Time. Can the Chairman of Committees tell us what helplines there are for Members of the House on other issues that we do not know about?

Lord Brabazon of Tara: I rather hope that we do not have too many other ones. I was not going to advertise the existence of the mouse helpline, although it was advertised some time ago. Indeed, I invited Members of the House to telephone when they saw mice. The trouble is that when the person at the other end of the helpline goes to check this out, very often the mouse has gone elsewhere.

Afghanistan: Minerals and Gemstones
	 — 
	Question

Baroness Rawlings: To ask Her Majesty's Government what assistance they are providing to the Government of Afghanistan for managing minerals and gemstone resources.

Lord Brett: My Lords, between 2004 and 2008, the UK spent £4 million to map mineral deposits in a geological survey of Afghanistan. This helped identify the growth potential of the mining sector and restructure the Afghanistan Geological Survey. We have agreed to help the Ministry of Mines to undertake an ambitious reform programme, with a budget of some £950,000, and the Ministry of Finance to implement the Extractive Industries Transparency Initiative in Afghanistan, with a budget of £515,000. In February 2010 the EITI board accepted Afghanistan as a candidate country.

Baroness Rawlings: My Lords, I thank the Minister for that reply. Is he aware-I am sure that he is-that Afghanistan is one of the poorest countries in the world, yet it has huge reserves of the highest quality lapis lazuli, silver, copper, rubies and emeralds-examples that can be seen even today in the British crown jewels, the Taj Mahal and the Russian imperial collection? What else are Her Majesty's Government doing to encourage development of these reserves to help alleviate poverty and help the Afghanis diversify from their reliance on the poppy?

Lord Brett: My Lords, the good news is that the reliance on the poppy has been much reduced, from 13 per cent in 2007 to 4 per cent in 2009. The noble Baroness is absolutely right: Afghanistan is the second poorest country in the world. This is why we have committed £510 million over four years on a series of measures: on assistance to government, more than £300 million; to create jobs and economic growth; more than £80 million; to help stability and development, £72 million; and to produce alternatives to the poppy, some £30 million.
	The noble Baroness is also correct in saying that a well regulated mining sector would have great benefits. The World Bank has identified the potential for an annual production of something over $250 million, and for 19,000 jobs. We continue to support the Afghan Government in their endeavours to diversify: that is part of our ongoing commitment.

Lord Anderson of Swansea: My Lords, after the geological survey that my noble friend referred to, which was funded by the British taxpayer, a Chinese metallurgical company paid $3 billion for a copper mine in Aynak province, with a potential profit of $88 billion. How can the Minister justify coalition troops guarding that mine and possibly laying down their lives when China picks up all the profits and provides no troops or any other form of military assistance to Afghanistan?

Lord Brett: We are in Afghanistan to assist the Government of that country to provide security and prosperity for their own people. It is true that the Aynak copper deposit is the second largest unexploited deposit in the world. It is equally true that the open tender for the contract to develop the mine was managed by the World Bank and won by the Chinese Government. One cannot develop a copper mine in one or two years: it has the potential for a lifetime of work. Our endeavour will be to ensure that the security situation in that country is such that its armed forces, police and Government can provide their own security for what is an international operation. Had the tender been won by a European or North American country, would we be making the same points?

Baroness Northover: My Lords, there are indications that the value of minerals in Afghanistan could be $1 trillion. Does the Minister find potentially chilling-given the effect on fragile states such as the DRC of having that sort of mineral wealth-the level of corruption in Afghanistan, with countries and companies tripping over themselves to exploit it? How can we work internationally to ensure that it is the many and not the few who benefit?

Lord Brett: The noble Baroness makes a very important point. I do not know the number of noughts one would put when estimating the potential value of minerals in that country: it depends on extraction costs and the world market. The noble Baroness is right to highlight the potential danger in a country that has had endemic corruption as one of its problems for a long time. It is important that President Karzai has made a commitment, both in his statement on his election and subsequently at the London conference, to make the fight against corruption his number one priority. Now we want to see that commitment turned into action. This is why we are putting our funding through government agencies to the extent of 50 per cent. We are anxious to ensure that the Afghan Government take advice, learn from the experience of others and remove corruption. The noble Baroness is right that if in the long term that is not the case, the wealth that could come to that country could be not a blessing but something worse, as we have seen in some parts of Africa.

Lord King of Bridgwater: Does the Minister recognise the wide support for the point made by the noble Lord, Lord Anderson; that the Chinese are moving in and taking advantage of the situation that has been created by coalition forces in support of the Afghan Government? Does he agree that there is a strong argument for the greatest pressure to be put on the Chinese Government for them to play a bigger part in helping in the overall task to which we are all committed?

Lord Brett: I find myself in slight disagreement with the noble Lord. On his latter point that the Chinese should play a bigger part, they are making major endeavours on the African continent in terms of assistance to some countries, development of some countries and, of course, the extraction of minerals. The noble Lord is absolutely right to say that the Chinese should play a more responsible role.
	On his first point, while I am not personally a great advocate of it, international capitalism is all about open tendering and those who bid the most money winning the contract. I have to make the point again that this is not a short-term contract. In the longer term, our intention is to ensure that there is a situation in Afghanistan where the Government can rule effectively and provide whatever protection is required for their industries and for their own people. That is what should guide us, and we should not be diverted. However, I take the point that the Chinese could play a much bigger and more responsible part. We would welcome that.

Baroness Nicholson of Winterbourne: My Lords, the Minister has mentioned that our Government are making funds available, at least in part, to a suitable agency of the Afghanistan Government. There are large question marks over whether that is an efficient way of operating. The wider neighbourhood of that part of the world contains the world's largest democracy next door, which has huge experience of gemstones, mining and so on. Are the Government considering working with the Indian Government on this issue? Would that not be a better way forward than just an isolated, incidental expenditure on a small scale, which is albeit laudable, through the agency of a very corrupt Government indeed?

Lord Brett: My Lords, we are in constant communication with our coalition colleagues and the countries in the region. The noble Baroness makes an important point in saying that India has a major interest in the gemstone industry both in its own sub-continent and beyond. I am sure that if there is assistance and advice that could be given, we would welcome Indian assistance in that direction. However, in the end it has to be for the Afghan Government and the Afghan people to determine their own future. All we seek to do is not to colonise the country; ironically, although we may have diamonds in Russian and British crowns, that is not what we are about in 2010. We are concerned with helping the Afghan people rid themselves of a form of insurgency and govern themselves. Those are the objectives that we should retain as our central focus.

Lord Skelmersdale: My Lords, does the Minister accept that the problem is not the small-scale mining of gemstones, but that of getting them out of the country and on to the international market? I understand that this is done on foot across the most dangerous frontier in the world; namely, that between Afghanistan and Pakistan. Can the noble Lord tell us what is being done to add to the security of that border?

Lord Brett: The question of the security of the border is much broader than one of people smuggling gemstones in small quantities, which must be the case by definition if they are being transported on foot. What we have is a much greater military and civil project, which is to assist the Government in defending themselves against incursions by people from neighbouring states who support the Taliban and al-Qaeda. That is in our own British interests as well as in the interests of the people concerned. I have no particular knowledge on the narrower point about gemstones, but I shall certainly look into it and write to the noble Lord.

Defence: Export of Military Components
	 — 
	Question

Lord Astor of Hever: To ask Her Majesty's Government what proposals they have for reducing the amount of paperwork associated with granting licences for the export of military components to NATO allies.

Lord Drayson: My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Senior Aircraftman Luke Southgate, II Squadron RAF Regiment, Rifleman Martin Kinggett, 4th Battalion The Rifles, Sergeant Paul Fox, 28 Engineer Regiment, Rifleman Carlo Apolis, 4th Battalion The Rifles, as well as a soldier from 3rd Battalion The Rifles, who died recently while on operations in Afghanistan.
	I turn now to the Question. We have eliminated the need for paperwork by making the licensing process fully electronic via the online SPIRE system, introduced in September 2007. Exporters also benefit from an open general export licence which allows, subject to certain conditions, military goods to be exported to the government of, or NATO headquarters in, specified countries.

Lord Astor of Hever: My Lords, I also send my condolences to the family and friends of the senior aircraftman, the Royal Engineer sergeant and the riflemen killed in Afghanistan.
	On the Question, despite what the Minister said, even the simplest of components are being delayed by excessive red tape in the export control organisation of BIS, which has clearly not woken up to the realities of globalisation. Will the Minister please ensure that the system is simplified and speeded up even further so that British companies can compete on a level playing field with competitors from less bureaucratic countries?

Lord Drayson: My Lords, we recognise that the defence industry is very important to the United Kingdom. It contributes about £12 billion to our GDP. I certainly give him that assurance. If he would like to provide me with any more detailed information about any concerns that companies have, I will follow them up. We are undertaking a customer satisfaction survey right now about the department in this matter. It is open until the end of March and we encourage people to participate in that survey.

Lord Addington: My Lords, I associate these Benches with the condolences read out by the Minister at the start of his Answer. Can the Minister assure us that priority is given to any components needed by an ally in active service, so that they will go through quickly, and that we ensure that if we require something for our Armed Forces or to be used by one of our NATO allies on active service, that that is done with the minimum possible bureaucratic activity, whether online or on paper?

Lord Drayson: I am very happy to give the noble Lord that assurance.

Lord Teverson: What is the Government's attitude to France, a NATO member, potentially exporting sophisticated warships to the Russian Federation?

Lord Drayson: That really is a matter for France.

Press Complaints Commission
	 — 
	Question

Lord Taverne: To ask Her Majesty's Government what plans they have regarding the independence and effectiveness of the Press Complaints Commission.

Lord Davies of Oldham: My Lords, for the public to have confidence in a system of self-regulation, it must be effective and robust. We welcome the recent report of the Culture, Media and Sport Select Committee and look forward to the Press Complaints Commission implementing its recommendations.

Lord Taverne: My Lords, the Select Committee of the House of Commons has produced a very thorough and excellent report, which found that the system of self-regulation of the press, as it exists, has failed, especially in the case of the McCanns and of the News of the World hacking events. Will the Government therefore implement as soon as possible the committee's most important recommendations? It recommended that the commission should be more proactive and not wait to receive complaints before it acts; that it should have a two-thirds lay majority; and, particularly, that it should have the power to fine, which should have the result that the commission becomes somewhat less tolerant of the inaccuracies and excesses of some of the tabloid press.

Lord Davies of Oldham: My Lords, the noble Lord has accurately reflected the main points and recommendations made by the Select Committee in the other place. The Select Committee reported only last week, and the Government will make their response to those important recommendations as soon as possible. There is no doubt that the Select Committee has expressed itself in trenchant terms, while at the same time indicating that it considers self-regulation of the press to be best achieved through the Press Complaints Commission.

Lord Soley: My Lords, does the Minister agree that the Press Complaints Commission, which has made some improvements in recent years, would do itself an enormous favour if it copied the practices of the Advertising Standards Authority and, as the noble Lord suggested in his supplementary question, took a more proactive role in dealing with cases? It might also like to consider how it could recommend to newspapers that they be prepared to be a bit more responsible in the way that they advertise themselves. You never find the name of an editor in a newspaper or on the website, so they surround themselves with a wall of secrecy while feeling free to invade everyone else's privacy.

Lord Davies of Oldham: On the latter point, my Lords, editors pride themselves on being able to open up to the public a range of issues of national moment; when they are the issue of national moment, it is only right that they should be similarly exposed to public scrutiny-and, of course, the Press Complaints Commission has a role to play, in part, in that. Certainly the commission would contend that it does a great deal of good work by stealth-independent sources testify to some of the constructive work it has done in recent years on less well-known and less well-publicised cases. However, as the Select Committee in the other place identified, on several really big issues the Press Complaints Commission has been found wanting. That is why it is so critical of it.

Baroness Buscombe: I declare an interest as chairman of the Press Complaints Commission. As with any organisation worth its salt, we welcome constructive criticism and take it on board. Indeed, the commission will be meeting shortly to develop its thoughts in response to the report of the media Select Committee. I remind the Minister that the commission recently set up a review of its governance to test its credibility, its proactivity and its strength in light of the need to be independent and effective. I can also reassure the Minister that a record number of people are coming to us, to good effect, including members of the-

Noble Lords: Order!

Baroness Royall of Blaisdon: I recognise your Lordships' problems. This is a time for questions, not statements.

Lord Davies of Oldham: My Lords, I paid tribute to the work of the Press Complaints Commission and to the latter points the noble Baroness identified. I am aware of the work being done by the commission in response to the Select Committee report. As I indicated, that report is only one week old; that is why we in government also need to make a measured response. There is no doubt of the strength of several of the recommendations and I am sure the House will expect the Press Complaints Commission to take them very seriously.

Lord Brooke of Alverthorpe: My Lords, in considering the Select Committee report, could my noble friend give an indication of how the Government will respond to the point about the commission being more proactive? In particular, could they explore the suggestion, which has been reviewed previously, that it is high time we had more declaration where conflicts of interest arise-for example, where people write financial articles when it is known that they have interests; and where people write political columns when it is known that they have direct family interests? These issues should be brought to the attention of the public. What are the Government's views on this?

Lord Davies of Oldham: My Lords there is no issue about what is good practice: the better newspapers follow it but some do not. While arguing, as it does, for self-regulation and emphasising its crucial role in a democracy of throwing light upon dark corners, it certainly behoves the press, when it is being challenged, to be open in its responses.

Lord Mawhinney: My Lords, bringing the Minister back to the Question, will he be more explicit about the Government's plans around the independence of the commission? In answering, can he define independence from whom or what?

Lord Davies of Oldham: My Lords, independence is an alternate to government regulation, to which the Government are opposed. They are in favour of independent regulation of the press, a position which the Select Committee of the other place endorses. However, the recommendations also indicate that there should be a greater number of lay members on the commission, where seven out of 17 are editors. We expect the Press Complaints Commission to look seriously at that issue; the Government certainly will.

Lord McNally: My Lords, thanks to the Guardian and the Select Committee report, we know how abjectly the Press Complaints Commission failed in dealing with the News of the World hacking case. Does not the Minister find it extraordinary that Mr Andrew Coulson, on whose watch as editor of the News of the World these abuses took place, should now find himself the principal adviser to the man who wants to be our next Prime Minister?

Lord Davies of Oldham: My Lords, it is a week of expressing concern about some appointments in the higher ranks of the Opposition. On the more general issue, the Select Committee in the other place was very concerned about the inadequacy of the Press Complaints Commission in looking into phone tapping. It was also extremely critical of what it regarded as obfuscation and avoidance of declaration by News International. We expect the Press Complaints Commission to learn lessons from the inadequacy in that case.

Lord Strathclyde: My Lords, is the Minister aware of any complaint made by the Liberal Democrats to the PCC about the stories of Mr Michael Brown, a convicted fraudster, who has given the Liberal Democrats £2.5 million, which they have still to pay back?

Lord Davies of Oldham: My Lords, I am not aware of any such complaint but that is probably because no one else is either. We might reduce the tension over this issue a little in this place and leave it to the other place to discuss these engagements.

Lord Snape: My Lords, does my noble friend accept that the effectiveness of the Press Complaints Commission and the noble Baroness-who has not yet mentioned the salary that she is paid to chair the commission-can be seen every morning in the free, fair and impartial way that the British press conducts itself?

Lord Davies of Oldham: The press is meant to be free, my Lords, and we hope that it is fair but we certainly do not expect it necessarily to be balanced in any individual journal. That is why we have different regulation for television, where we expect a degree of objectivity. We expect the press to be partial. That does not mean that the press ought not to be concerned about journalistic standards, which certainly mean that reports should be as accurate as a journalist can make them.

Lord Dykes: Apart from replying to the anxieties over so much of the printed media and one television service in this country being owned by people who reside overseas and do not pay UK taxes, could the Minister please respond to the very important point made by my noble friend in his supplementary question? The Select Committee has rightly recommended, at paragraph 575 on page 130, that in cases of a serious breach of the code, heavy fines should be imposed. What is the Government's specific response to that suggestion?

Lord Davies of Oldham: That is an important consideration but the noble Lord will appreciate the consequences of any fines imposed by the Press Complaints Commission. They could easily lead to legal action. Whether we want a great many of these issues solved through the law courts or by more effective regulation by the Press Complaints Commission is a very interesting point. The noble Lord will forgive me if I say that the Government are not pronouncing on the issue in their response to the Select Committee, until they have looked at it very carefully.

Constitutional Reform and Governance Bill
	 — 
	First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Bosnia and Herzegovina) Order 2010

European Union (Definition of Treaties) (Stabilisation and Association Agreement) (Bosnia and Herzegovina) Order 2010 
	8th Report from the Joint Committee on Statutory Instruments

Motion to Approve

Moved By Lord Brett
	That the draft order laid before the House on 3 February be approved.
	Relevant document: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 1 March.

Lord Hylton: My Lords, I have two questions concerning the order. First, how soon will the asymmetrical trade preferences come into force? Secondly, what will be the length of the transitional period for the free trade area? I raise these points because the Bosnians need to have tangible benefits as they move towards EU membership.

Lord Brett: My Lords, I regret that the noble Lord was obviously not able to be present in the Moses Room when we debated this issue. It is the Government's intention to encourage Bosnia-Herzegovina, and this treaty seeks to do so. I do not have the detailed information to hand on the points that he made, but I will certainly make the requisite inquiries and write to him.
	Motion agreed.

Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010

Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010

Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010 
	Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010

Motions to Refer to Grand Committee

Moved By Baroness Royall of Blaisdon
	That the draft regulations be referred to a Grand Committee.
	Motions agreed.

Digital Economy Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments

Report (2nd Day)

Clause 8 : Contents of initial obligations code
	Amendment 54
	 Moved by Lord Clement-Jones
	54: Clause 8, page 10, line 35, at end insert-
	"( ) that the code makes provision to ensure subscribers do not incur any cost in meeting their obligations under section 124A;"

Lord Clement-Jones: My Lords, once again it falls to me to propose an amendment against the tide of the House as noble Lords exit, so I shall read out my first paragraph slowly to make sure that everybody gets the full flavour of the proposal. In moving Amendment 54, I shall speak also to Amendment 108.
	The aim of this amendment is to ensure that the initial obligations code includes provision to guard against subscribers notified under Clause 4 facing any costs in responding to a notification. We on these Benches seek reassurance that subscribers-essentially, consumers-will be able to challenge any notification without cost. Amendment 108 has a very similar intent. The aim of that amendment is to clarify that subscribers notified under Clause 4 by their ISP that their internet connection has been linked to online copyright infringement will not directly bear the costs of the proposed scheme.
	Consumer organisations strongly oppose consumers having to pay to appeal. The Explanatory Notes to Clause 15 state, at paragraph 77, that,
	"most of the costs of subscriber appeals to an independent person ... should be funded by industry, so that a subscriber does not face significant costs in making an appeal".
	Why should not all the direct costs be borne by the industry, whether ISP or copyright owners? I beg to move.

The Earl of Erroll: My Lords, I support this measure. "Subscriber" means the person who pays the bill on an IP address, so this also includes, for instance, universities. Last night I had an interesting conversation with the security people at Queen Mary, University of London, and discovered that, whereas last year they got about 50 to 100 copyright infringement reports from American legal firms demanding that they do something about it, they are running at 50 a month this year. It is clear that the Americans are grouping to have a bigger drive once this Bill is passed. We do not want to see universities cut off, so they will probably have to undertake appeals. I do not see why an education establishment should have to pay the cost of this sort of thing in order to protect rights holders.

Lord Howard of Rising: My Lords, we return once again to the question of costs. I agree with the noble Lord, Lord Clement-Jones, that the subscribers, the majority of whom are legitimate users of the internet, should not bear the costs for the behaviour of the minority. As has been said in previous debates, although we realise that ISPs may have to bear a proportion of the costs of sending out the letters and compiling infringement lists, this proportion must be judged so as to impact as little as possible on subscribers.
	I am afraid that I cannot agree with the noble Baroness's amendment. To ask ISPs to bear a part of the cost burden for a process over which they have absolutely no control seems extremely unfair. It is entirely in the hands of copyright owners how much they spend on identifying breaches of copyright. They choose-

Lord Clement-Jones: My Lords, I am sorry to interrupt but I think that the noble Lord may not have noticed that Amendment 110 has been degrouped,

Lord Howard of Rising: My humblest apologies.

Lord Young of Norwood Green: My Lords, when a cost is placed on industry, ultimately there is a high likelihood that the consumer pays. It would be impossible to audit all ISPs to ensure that none of the cost associated with the notification process was passed on to consumers. Whether ISPs absorb all the costs of notification is a commercial matter for them, but if they pass all of it on, we do not think that that will be significant. Our high-end estimate is that the annual cost to a consumer per year would be around £2.50. We are not saying that that cost should be passed on but we are pointing out one of the difficulties of audit relative to the size of the problem.
	Amendment 108 is slightly different in that it would prevent the cost-sharing order passing on any of the cost of appeals to consumers. In large part, we agree. For practical purposes, we envisage all the costs associated with appeals falling on to industry, but not completely. There is an argument-here I refer to a comment that the noble Lord, Lord Howard, made when he talked about a "minority"-that a large number of people, perhaps millions, are currently engaged in illegal file-sharing. Therefore, when we say "but not completely", we feel that there should be a modest fee, refundable if successful-I stress the words "refundable if successful" and "modest"-when a subscriber accesses the appeals system. Our only reason for including that caveat is that the aim is to prevent frivolous appeals that waste time and money and clog up the system.
	We understand the principle and do not in any way want there to be an adverse effect, preventing genuine appeals by charging a cost penalty. To make matters completely clear, I stress that we are not saying that we think such a fee should be introduced, as that also raises practical issues, such as looking at the need for exemptions and so on, but we think that we should leave the option open. Therefore, minds are by no means made up on this but I have drawn noble Lords' attention to some of our concerns.
	I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that helpful clarification. My reason for bringing up this amendment again at this stage is that I think it was lost in the thickets of another grouping in Committee.
	The Minister's comments in respect of both Amendments 54 and 108 are reassuring. Clearly, Amendment 108 relates to exceptional circumstances, and I very much hope that the code will reflect that. Of course, we very much hope that the Minister is correct about the sum of £2.50 that he mentioned in respect of the earlier amendment. Consumer organisations need to look at what he said to see whether they are adequately reassured by it. In the mean time, I beg leave to withdraw the amendment.
	Amendment 54 withdrawn.
	Amendment 54A
	 Moved by Lord Clement-Jones
	54A: Clause 8, page 10, line 35, at end insert-
	"( ) that takes into account circumstances whereby injunctions under section 97B as inserted by section (Preventing access to specified online locations for the prevention of online copyright infringement) of the Digital Economy Act 2010 may be brought"

Lord Clement-Jones: My Lords, I shall speak also to Amendment 120A. First, I apologise for the slightly artificial introduction of this amendment at this point in the proceedings. The use of a paving amendment, Amendment 120A, at this juncture is simply a result of the desire of the signatories to the amendment to ensure a proper debate in prime time in this House of the merits of Clause 17 and our proposed substitute for it.
	In Committee, the view on these and other Benches was that Clause 17 should be left out of the Bill. Without going on at great length, our reasons were various but essentially boiled down to concerns about the scope of the clause and its ability to amend the Copyright, Designs and Patents Act 1988. Amendments tabled by the Government in Committee arguably, in the view of the Constitution Committee, extended its scope. New government amendments have been put down on Report which are claimed to narrow the scope of the clause so that it is only Chapter 6 of the Act that can be changed by the Clause 17 procedure. Nevertheless, despite these amendments, it is the blanket nature of the clause which is objectionable, and I believe it would still be considered so by the Delegated Powers Committee and the Constitution Committee.
	The Government claimed in their evidence to the Delegated Powers and Regulatory Reform Committee that they need to respond to technological change. In Committee, the Minister used the term "future-proofing". Yet in our view, despite reports such as the Gowers review of intellectual property, which was excellent in many ways, the Government have failed after many years to bring forward legislation to make the reforms that have been suggested. The super-affirmative procedure contained in Clause 17 is not an adequate substitute for Parliament's established way of dealing with matters of complexity and importance through primary legislation. Despite government assurances, from personal experience I can attest to the difficulty of changing or contesting secondary legislation in any way. As the sub-committee of the Delegated Powers and Regulatory Reform Committee recognised, primary legislation is more suitable for these kinds of changes.
	At the same time as outlining our objections to Clause 17, we made it clear that were the Government to come forward with concrete proposals to amend either the Copyright, Designs and Patents Act or the Communications Act for specific purposes, we would support them. However, there was a deafening silence from the Government. It has become apparent that there are particular threats from sites-cyberblockers hosted abroad, particularly in Russia. It is clear that infringement is taking place in both peer-to-peer and non-peer-to-peer environments. File-sharing is only one part of the problem. It has become clear that the Digital Economy Bill needs to include measures to deal with non-P2P infringement. About 35 per cent of all online copyright infringement takes place on non-P2P sites and services. We need to tackle an existing problem where there are websites that consistently infringe copyright, many of them based outside the UK, which are beyond the jurisdiction of the UK courts.
	Rather than "future-proofing", we need "present-proofing". We have therefore devised a proposed new Section 97B for the Copyright, Designs and Patents Act 1988. Amendment 120A is designed as a specific alternative to the blanket nature of Clause 17. The proposed new clause makes explicit what is already implicit in the CDPA. Currently, Section 97A provides for injunctive action against service providers. That section was added as a result of the e-commerce directive of 2001, now implemented across the EU. The amendment would specifically allow the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.
	Any concerns regarding Article 6 of the European convention, on the right to a fair hearing, are dealt with by the fact that the service provider would be a full and active party in the proceedings. Equally importantly, the site operator will also be served with notice of the injunctive application. There is an explicit reference to human rights implications being taken into consideration by the courts in the new clause. This remedy would stop the supply of illegal content by blocking it at source. There are several websites, many of which are based outside the UK, which refuse to stop supplying access to illegal content-indeed, whose business plan depends on supplying illegal content. At the moment, it is not explicit what can be done about such sites. This site-blocking remedy would give rights holders an explicit, swift recourse to court to block access to those sites. It is very straightforward for a party to avoid an injunction by this remedy-simply remove the infringing part of the publication permanently or temporarily pending investigation.
	The amendment addresses many of the concerns expressed about Clause 17. It moves the decision-making to a court rather than the Secretary of State and thereby affords the ISP the opportunity of the six months deadline for the creation of the code to be extended. It contains two clauses that would have the effect of deferring the provisions of new Section 97B coming into force until the notification process is complete. There is already a remedy under Section 97A of the CDPA, which grants copyright owners a broad power to apply to the courts for injunctive reliefs. This amendment does not seek to replace that section, but enhances that power by giving copyright holders a more clearly defined relief with respect to the blocking of infringing sites. I commend this amendment to the House as a more proportionate, specific and appropriate provision than Clause 17, and I hope that the Minister will take a similar view.
	The measure confines itself to site blocking. It is a less dramatic change to the copyright Act than originally envisaged by the Government. It amends the Act simply by introducing new Section 97B. It would sit below and build upon the existing Section 97A, which currently provides for rights holder to apply for unspecified injunctive relief to deal with copyright infringement. Finally, it provides against rights holders returning to the court as a substitute for developing innovative and legal services. The court can have regard to whether the copyright owner has made reasonable efforts to facilitate legal access to the content.
	The Government, with whom we have had some discussions, have said that they are opposed to this measure on the grounds of national security objections. We are told that there may be problems for national security in site blocking. We have again explicitly tried to ensure that these concerns can be taken into account by a court when granting an order. The amendment makes provision for the court to have regard to any issues of national security raised by the Secretary of State. Furthermore, if the injunction was exercised with regard to only a handful of sites a year, it would be unlikely to trigger the mass defection to encrypted sites that may be at the root of the Government's concerns.
	Site blocking is not a new phenomenon. It is used with great success in other spheres to restrict access to sites hosting illegal content. The most well known is the recommended list of sites to block provided by the Internet Watch Foundation. A direct analogy is obviously difficult given the content that the IWF monitors-child sexual abuse content hosted worldwide and criminally obscene and incitement to racial hatred content hosted in the UK-but the important fact is that sites are routinely blocked. Recently, in response to a Parliamentary Question on the blocking of websites identified as containing illegal images of child pornography, Alan Campbell MP, Parliamentary Under-Secretary of State responsible for crime reduction said:
	"The Government regularly receives representations relating to blocking, from different sections of society. The Government discusses issues relating to child protection, including blocking of websites containing illegal images, with a wide range of stakeholders.
	The Government are clear that the use of blocking to prevent access to such images is something that internet service providers should do, and the Government have been very pleased with the response from the internet industry".-[Official Report, Commons, 2/11/09; col. 692W.]
	I think that speaks for itself.
	In addition, at the end of last year, an operation by the Met's e-crime unit resulted in more than 1,200 websites being shut down or effectively frozen. Access to these sites, which were selling counterfeit goods, was denied. I said earlier that the Government have raised the objection that the proposal, if it became law, would require notification to the European Commission under the technical standards directive. We believe that the explicit reference to the time delay required in order to comply with the EU technical standards directive cures that problem. I commend the amendment to the House. I beg to move.

Lord De Mauley: My Lords, I thank the noble Lord, Lord Clement-Jones, for tabling Amendments 54A and 120A. The many objections to Clause 17 were made perfectly clear in Committee, but while the Government's amendments are an improvement, they do not take account of the fundamental objection that the Government are asking for a power for which they cannot explain the need or how it will be used. This is quite extraordinary, given that there is clearly a growing problem with online copyright infringement via sites streaming copyrighted material.
	The Government were astonished to find that Clause 17 might be used to address this issue. Nevertheless, they appeared to agree that setting in place arrangements for blocking sites that make unlawful material available might be an acceptable alternative. Unfortunately, discussions between the Government and the Opposition have not resulted in an amendment on which all sides can agree. The sticking point appeared to be the security services, as the noble Lord, Lord Clement-Jones, has explained. We on these Benches have therefore worked with the noble Lord and his party to address that concern, and our amendment would insert the consideration of national security, thus ensuring that, if these concerns are indeed justified, the Secretary of State can intervene to ensure that there are no unintended consequences from injunctions being granted. We will obviously keep such considerations under close review.
	We support Amendment 120A as an alternative to Clause 17, and hope very much that the Minister will agree to accept it as a necessary solution to a growing problem.

Baroness Howe of Idlicote: My Lords, this is an interesting idea which, theoretically anyhow, we should consider very seriously. I hope the Minister will do so.

Lord Lucas: Will the Minister comment on his amendments in this group so that I can comment on them as well as on this amendment? I encourage him to do so.

The Earl of Erroll: Likewise.

Lord Young of Norwood Green: I am resisting getting up unnecessarily because I have problems with my hip, so I hope noble Lords will understand that I do not mean to be impolite when I nod in the affirmative.
	Before I speak to the amendments, it is worth my recalling what gave rise to Clause 17. The clause provides a framework within which to address future issues of online copyright infringement. It is the most effective and proportionate way to ensure that we do not have to react continually to crises but can consider and act within specified limits if-I stress this-Parliament agrees.
	Online copyright infringement is estimated to cost in the region of £400 million per year. In addition to lost sales, this acts as a significant dampener on the ability of the creative industries to build new commercial online models due to their inability to compete with free online copyright infringement. This is a threat to the ability of an important part of the UK economy to modernise and develop.
	We live in a time of rapid technological change in which new ways of online copyright infringement can come to the fore quickly, and we need to be able to respond quickly and flexibly. We cannot be completely confident today which nascent threats will become sufficiently serious to require consideration under Clause 17. I give three examples: programs that allow streaming services, such as Spotify music or video such as BBC iPlayer, to be permanently downloaded, thus contravening the terms of access to those services; programs that overcome digital rights management technology, such as stripping music tracks from music videos; and types of aggregators that could create conditions for infringing behaviour.
	Clause 17 requires a rigorous process to be undertaken, but it might be used to strengthen existing provisions on digital rights management, which might help to counter threats of stream-ripping or video-to-audio conversion, to clarify the legal status of metadata when used to convey the wishes of a copyright owner regarding material that is later subject to civil infringement, and to support rights-holders' actions against online copyright infringers either by helping with the process or by assisting efforts to educate consumers. I hope these examples illustrate the breadth of the problem with which we need to deal.
	Amendment 54A, moved by the noble Lord, Lord Clement-Jones, highlights the potential impact that Amendment 120A might have on the operation of the detailed provisions that we are setting up in Clauses 4 to 16. However, the main issue to address is Amendment 120A. I understand what lies behind this approach, but I cannot accept it for two fundamental reasons.
	First, the provisions would need to be notified to the European Commission under the technical standards directive. Although I accept that the drafting attempts to deal with this, we are clear that even the creative solution offered by the noble Lord, Lord Clement-Jones, in subsections (6) and (7) of the proposed new clause in Amendment 120A would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable.
	Secondly, I do not think that it would be sensible or appropriate to adopt this approach today. Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult. Simply leaving it to the courts to do that without any guidance or assistance does not seem sensible.
	However, the trickiest issue is likely to be around sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which I think will cause significant public disquiet. In my view, people would be right to be worried, since we have only the most basic understanding of the potential consequences of such a clause.
	The noble Lord, Lord Clement-Jones, implied that this would provide a simple solution-would that that were the case. He rightly referred to the activities of the Internet Watch Foundation list. We see that as a very different situation. The core offenders of child abuse imagery are a very small proportion of the population and the list affects only a small number of sites. Due to the penalties and stigma involved, the offenders do not advertise their techniques, and they practise evasion techniques which make them very difficult to detect. However, it is important to prevent accidental exposure to what is globally recognised as offensive content, the very presence of which continues to abuse victims.
	This is a very different strategy to tackle a different problem. It is not comparing like with like. We estimate that as many as 6 million or 7 million people may be infringing copyright online, and probably thousands of sites are involved. The adoption by 6 million or 7 million people of evasion technologies would be a very substantial change in internet user behaviour and you cannot compare that to the small number of sites to which the noble Lord, Lord Clement-Jones, referred. This is a serious step and we should make sure that if we are going to make analogies, they can stand examination and scrutiny. With due respect, I do not believe that the analogy quoted by the noble Lord, Lord Clement-Jones, can stand that scrutiny.
	Despite everything that the noble Lords, Lord De Mauley and Lord Clement-Jones, rightly said about scrutiny, accountability, fairness to subscribers and the burden of proof in relation to Clauses 4 to 17, this amendment offers no such safeguards, no thresholds and no defences that can be relied on. It also assumes the service provider's responsibility even when it cannot reasonably be in a position to prevent the harm complained of. The court is enjoined to take some of those matters into consideration, but it is given no guidance on how to make those judgments or on what might be reasonable levels of collateral harm.
	I also note that the amendment refers the court to consider any issues of national security raised by the Secretary of State. I say candidly that that misses the point. The security concern felt by the Government and the intelligence and law enforcement agencies is not about particular acts of site blocking but about the impact that site blocking would have in changing public behaviour. That point has somehow been overlooked-I will not say "conveniently overlooked", because I do not dispute the genuine attempts being made here-in a way that would make it significantly more difficult for the intelligence and law enforcement agencies to do their job effectively. For that reason, I strongly urge the House to think and reflect very carefully. I believe that we should reject this amendment.
	Although it is possible that a clause along these lines might be a useful and appropriate way of tackling some forms of copyright infringement, this amendment is not it. We should not act precipitately in a matter that would so significantly impact on internet users and the digital economy. We have never said that there might not be a case for site-blocking. However, this approach, without consideration and consultation, is not the right way to apply it.
	It may be an understatement to say that my comments might not be popular with noble Lords who have put their name to the amendment. However, Clause 17 would give us the opportunity to look at the issue properly and to give Parliament every opportunity to scrutinise the evidence and the terms of any order, thereby holding the Government to account. Surely this is a much better approach and is much more likely to yield effective results. I must therefore ask noble Lords to consider the matter carefully and not press their amendments.
	I come last, but by no means least, to the government amendments. A number of your Lordships rightly expressed concern about the breadth of the power in Clause 17. We agree with the assessment of the Joint Committee on Human Rights that there is a delicate balance to be struck between the right to freedom of expression and the property rights of copyright holders. The checks and balances in Clause 17 allow us to strike that balance. The Government have listened to the concerns raised and, in Committee, proposed substantial amendments which clarified the power's scope and strengthened the safeguards surrounding its use. They do so in four ways: first, by making it clear that the power is targeted and may be used only to tackle infringement, and only in a way which is appropriate and proportionate-we have narrowed the scope; secondly, by providing a threshold in terms of serious adverse effects, which is sadly lacking in the noble Lord's amendment; thirdly, by making it clear that the Government must consult all persons likely to be affected; and, fourthly, by requiring the use of the power to be subject to super-affirmative resolution.
	For the life of me, I still cannot understand the analysis of the noble Lord, Lord Clement-Jones, that that is not a protection. It provides accountability in both Houses, and it gives both Houses the right to reject if they do not believe that a government proposal is appropriate. The noble Lord has not denied that. The super-affirmative procedure provides that the Government must have regard to resolutions of either House and to the recommendations of a committee of either House that is charged with reporting on the draft order. That is accountability. As I said in Committee, a balance has to be struck between the competing needs for careful and measured consideration of any action and for the ability to act quickly when the occasion demands. It is absolutely right that Parliament should have enough time to consider properly any proposed use of the power. The use of the super-affirmative procedure will provide for this.
	We are supplementing that through new amendments. First, we have listened to concerns about the breadth of the clause. Amendment 113 makes it clear that the scope of amendments to Part 1 of the 1988 Act is limited to Chapter 6 of Part 1 of the copyright Act. It clarifies that the clause can be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement. Secondly, the amendments require an independent report to be submitted to Parliament on whether the infringement about which concerns have been raised is having a serious and adverse effect on businesses or consumers. Thirdly, the amendments prohibit the clause being used to require payment of any sum other than that required to cover the cost of the performance of the function.
	The amendments will ensure that the breadth of Clause 17 is properly defined and that Parliament is properly able to consider the evidence and any order made under the power. As a result, the clause will allow us to respond quickly and flexibly to adverse developments that affect our vital creative industries. I strongly urge the House to reject the amendments tabled by the noble Lords, Lord Howard and Lord Clement-Jones. Their intentions may well be honourable, but their proposals are unfortunately not appropriate and will not solve the problem. I hope the House will reflect further and agree with the Government's amendments, which give us both proportionate and flexible power.

The Earl of Erroll: My Lords, I shall comment on all the amendments in the group. The Minister will be surprised to hear that I agree with him. I still do not like Clause 17 and shall support Amendment 121, which would remove Clause 17. I believe that the super-affirmative procedure leaves too much of the power with the people drafting the statutory instruments and removes powers from this House unnecessarily. I would like to see at an early stage in the next Parliament a proper review or rewrite of the Copyright, Designs and Patents Act to sort this issue out. That is well overdue in the digital age. It would be the proper way to do this, rather than through funny other procedures that do not involve Parliament properly. I will try to get everyone to accept Amendment 121 and the removal of Clause 17. It is the most sensible amendment in this group and would enable us to consider this issue in the next Parliament, although that does not mean that I do not think that there should be a review.
	Given the choice between the government amendments and Amendment 120A, whose paving amendment is Amendment 54A, I would prefer the government amendments, for all the reasons that the Minister gave. As he said, Amendment 120A is full of honourable intentions but it is also full of unintended consequences. That is my real problem with it. We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one. It will not take people long to find some infringements. You can just see the legal wars between the big boys and the little boys-of course, the big boys will probably win in the High Court.
	That leads me to the next issue, which is the cost of the defence. This will go to the High Court, but until it does we will not know whether we really are talking about a substantial proportion of the content and what would qualify. We will face the old situation in which ACS:Law and others threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court. The problem is the cost of justice, which is a huge block. We have to remember that.
	We have dealt with the fact that we need to know that people own the copyright before they take a case to court. There have been a huge number of amendments, from the noble Lord, Lord Lucas, in particular, saying that we need to know that people really are in a position to take a case to court. Well, we will not know until it has got to court. There is no requirement that people should show evidence up front that they own the copyright, so we certainly need to consider that.
	I have not got my head around the status of orphan works and the problems that may face the British Library and other libraries or the collecting agency if it ends up managing orphan works. Will they get the right to say that something is in copyright? That will need to be looked at.
	I discovered last night that Queen Mary, University of London, is in effect like an ISP. It has three security people overseeing a system of 20,000 connections. People come and go, such as students coming over here and lecturers on attachment. Three people cannot hope to manage all that. The college will of course have lots of material for research on its servers. I should think that most of that is bona fide, but what if one of the researchers has breached copyright in the way in which he has put up material that he thinks is relevant to his research? I can see that being taken down.
	I can see the point of Amendment 120A. It is a clever way of trying to ensure that we do not go too far in Clause 17, by replacing it. However, this is too late a stage to insert it. This needs to go out to the whole industry for discussion first, so that we can find all the pitfalls. I have described the pitfalls that I spotted in 10 minutes of reading on this Bench. If I can do that, what could the whole industry do?
	Government Amendment 113 would amend the heading to read "Power to amend Chapter 6 of Part 1 and this Part". I need a legal opinion on this, but does that mean that the Minister can use this part to remove Chapter 6 and then do what he likes? I am not sure whether laws can be used retrospectively in that way.
	Apart from that, I prefer the government amendments to Amendment 120A, because they tighten up Clause 17, but most of all I would prefer Clause 17 to be removed altogether, so I support Amendment 121 in the names of the noble Lords, Lord Razzall and Lord Clement-Jones.

Baroness Miller of Chilthorne Domer: My Lords, I first express my gratitude to my noble friend for bringing this forward in prime debating time because it is an important issue. My main concern with this whole debate is that whatever we conclude here, the other place will not be able to spend any time scrutinising what is actually an incredibly important change in the way that the internet is dealt with.
	The Minister almost implied that the Government needed power in times of crisis. This is not a national crisis: this it still a matter of civil copyright infringement. Although I can see that it is important, such changes to the way that the internet is used in terms of filtering and blocking should not be undertaken without the other place having full opportunity to scrutinise them, which they will not have. Therefore, without going into the other technical ins and outs that my noble friend, the Minister and the noble Earl, Lord Erroll, talked about, for that reason alone it would be much neater at this stage to simply remove Clause 17, given that this is not a national crisis. If it becomes very urgent at some stage, the Government can introduce primary legislation that can be properly scrutinised, amended and dealt with.

Lord Whitty: My Lords, I am sorry to enter this debate at a late stage. I have only just worked out that what is now Amendment 120A was Amendment 112 last night. I was alarmed because I did not expect such a radical measure from the Liberal Democrat Front Bench. It raises serious problems, as the noble Earl, Lord Erroll, said, and introduces a novel procedure.
	I was not much enamoured with Clause 17 and still have my doubts about it. But it is undoubtedly true that the amendments that the Government have brought forward plus the super-affirmative resolution greatly narrow Clause 17 and make it more subject to parliamentary scrutiny. However, the problem with both approaches is that they are attempting on the narrow basis of what this part of the Bill is primarily about, which is peer-to-peer file-sharing, to build a whole new approach to copyright in the digital age. What is really required-the noble Earl also referred to this-is a more comprehensive approach to copyright protection and its impact on consumers and rights holders in the digital age.
	What puzzles me is that that process is being pursued in another part of the Minister's department in terms of a copyright strategy engaging the Intellectual Property Office and so forth. There are also developments at European level. At some point within a year or two we will have to return to this to develop a more modern approach to copyright and intellectual property more broadly and relate that to the digital age. In the mean time, the original Clause 17 was far too broad and blunt, but I am afraid that the amendment of the noble Lord, Lord Clement-Jones, also sounds too repressive to me. I will consider where I stand on Clause 17 when we come to it.
	My key point is that the Minister needs to consider whether we should take these comprehensive aspects of the Bill away and focus on the narrower area of peer-to-peer file-sharing and return in a more sympathetic and considered way, with-I see that my noble friend Lord Puttnam is in his place-a fair degree of pre-legislative scrutiny about how we approach copyright issues in the longer and broader term.

Lord Lucas: My Lords, I take to heart some of the things that have been said about Amendment 120A, although I admit that I am prejudiced because I tabled an amendment very much along these lines in Committee. My amendment did not excite the Government so much, because they are engaged in laying a smokescreen; they can see that this is a serious torpedo heading towards this bit of the Bill. I do not take seriously what they say about the security services. There is nothing about this proposal that is not also implied by the Government's proposals. If the Government are to go ahead with cutting off people's internet if they appear to be file-sharing illegally, that will result in a substantial migration to encrypted services and other ways round, as it seems to be doing in Sweden.
	No additional dangers are presented by Amendment 120A, which, as the noble Lord, Lord Clement-Jones, has said, addresses an aspect of illegal behaviour that was addressed by the noble Lord, Lord Triesman, at an earlier stage, when he talked about what is happening with football. As soon as a match is played, the stuff is there, with a streaming video on the internet and lots of people watching it illegally. Nothing in the Bill addresses that, whereas this proposal would. For those parts of the digital world where an immediate experience is required, this is probably the only way in which to deal with the issue, and it will have to be addressed.
	The Minister and others have pointed out that the amendment will need some tweaking. That is not unusual. I have very rarely had anything substantial by way of an amendment accepted by the Government, even if they liked it. It would be a good idea to get this into the Bill so that the Government can set about improving it or giving us an alternative.
	This amendment represents the right way forward. It would do something in primary legislation; it would not create a structure that allows the Government to make radical changes through secondary legislation but ensure that things are properly debated and thought out. The objections that the Government raise to this proposal are minor ones, which could be dealt with by adaptations to the fact of the clause being in the Bill, if that is where it ended up. Dealing with the requirements of European legislation is within the capacity of the Government, and dealing with the requirement that there be full and proper consultation before the clause comes into effect will be there in other aspects of this Bill. Whether the balance is exactly right in these clauses can be dealt with between now and Third Reading. There is no insuperable objection to incorporating this new clause into the Bill, and I prefer it to anything in Clause 17, even with the admittedly helpful changes made by government amendments.

Lord Puttnam: I ask the noble Lord, Lord Clement-Jones, to clarify one aspect of his argument for me, because I am genuinely puzzled by it. The noble Lord is an experienced lawyer, who has been in this House for a dozen years and seen a great amount of legislation flow through it. He refers several times to the notion that somehow a super-affirmative resolution removes the power from this House, but nothing removes the power from this House as much as its inability to legislate in situations in which there is clear abuse and the very nature of our legislative process makes it impossible to move with sufficient alacrity to deal with issues.
	I should have thought that it was much better to work on and improve the process of the super-affirmative resolution to the point at which it becomes a very useful instrument for this House, knowing full well that the process of introducing primary legislation into your Lordships' House is tortuous. The noble Lord has been here a long time, so how much time would he guess it takes to take a problem, turn it into primary legislation and get it through this House? It is probably something like two and a half years. In a fast-moving environment such as the one we are dealing with in relation to the entire Bill, two and a half years is a lifetime. Whether a super-affirmative resolution is right or not, we have to find a better, more effective, more efficient and speedier way of dealing with the kind of problem that the Bill overall is attempting to address.

Lord Fowler: The point made by the noble Lord, Lord Puttnam, is important and I shall deal with my view on it in a moment. I have some sympathy with the case put by the Minister. I was told that the industry supports the amendment to get rid of Clause 17. I am not sure what part of industry that is. It may well be that Google supports it, but I do not think that the creative industry is speaking in one voice on that. As far as I am concerned, the British creative industry-film, television and musicians-is made up of important people who want to see effective action taken against piracy. I come from a position of having a certain amount of sympathy with what the Government are saying.
	As the noble Lord, Lord Puttnam, mentioned, we are told that we should have primary legislation and that nothing would be easier. In my experience of government, that has not always been the case. It takes a certain amount of time to get primary legislation through and it has always been hard fought for by a series of Ministers. My favourite example is camcorder crime, which involves recording the showing of a new film in a cinema and selling it as a DVD. I give the department credit for wanting legislation on that, but I suspect that it was unable to do so. It said that it was waiting for the result of the test case under the Fraud Act, which was a very odd argument, given that the department did not even realise that the test case had taken place. In any event, it was held in the magistrates' court on the Isle of Wight. I do not think it had much resonance on the Isle of Wight, let alone in the nation. I need a bit of convincing on that issue.
	The noble Earl, Lord Erroll, and I are on the same side for once. It is Clause 17 that we need to address. Whatever the Government say about consultation, the measure will end up as an order which the House can accept or reject, but which it cannot amend. That is a fundamental defect in something that we are doing here. The Minister talks about consultation. Although he was not the Minister responsible at the time, I have to say that we have been down the consultation path before with Ministers from his department. We had what was described as the biggest consultation in history on the BBC charter. It was a major consultation and all kinds of people were asked about their views. The only trouble was that the department took not the slightest notice of the result of the most important part of that consultation. That is why we have the BBC Trust. Virtually everyone told Ministers at the time that the BBC Trust was a bad idea that would not work and would create a divided structure at the top of the BBC. What did the department do? It said, "We are not consulting on that bit. We are consulting on other parts".
	I am not content, frankly, to receive only vague assurances on consultation. In far too many parts of the media area we make decisions not on the basis of fundamental debate in this House but on an order, such as on the licence fee, which noble Lords can accept or reject-you cannot amend it in any way-or through the BBC charter which does not even come to this House. I regret that I share many of the feelings of the noble Lord, Lord Puttnam, on that, but I fear that I could not support the idea that we should go ahead and put another accept-or-reject order into legislation. Rather like the noble Earl, I could not conceivably support Clause 17 as it stands.

Lord Maxton: I was not going to speak on this amendment, but the debate has become about the rights and wrongs of secondary legislation, rather than what the Bill is about, namely the digital economy. With due respect to the noble Lord, Lord Fowler, on whose committee I served, he is a Conservative ex-Minister and I spent 18 years myself in opposition in the other place. I have now had to listen to somebody who was in that position talking about secondary legislation when again and again, on legislation that in some ways was more important than this, I had to endure the introduction of secondary legislation. One example was the community charge or poll tax legislation, which was littered with secondary legislation, including orders that were going to be passed in exactly the way that the noble Lord is now objecting to. We are living in a fast-changing technological world and we need powers to change legislation. Maybe my noble friend is right and we need to look at how we deal with secondary legislation, but let us not say that we will not use it in the Bill when we use it in so much other legislation that goes through both Houses.

Lord Clement-Jones: My Lords, it is time for me to wind up. This has been a very serious debate and I thank all noble Lords who have taken part. I thank particularly the Conservative Benches, both Front and Back, for their support for the amendment. It is greatly valued.
	The debate between the noble Lords, Lord Fowler and Lord Puttnam, was extremely important. It is not invalid for a Minister to repent, and certainly not for him to draw on his experience in these matters. One key case against Clause 17 is the fact that an order cannot be amended in these circumstances. Having myself been the victor by the narrowest of margins against an order for the third time since the Second World War, I know how squeaky those debates can be.
	I hope that the noble Lord, Lord Puttnam, will look seriously at the amendment. It provides a clear remedy for the creative industries. It is not a blanket like Clause 17: it is designed to assist the very people for whom he is such a powerful champion. Primary legislation need not take two and a half years. If the amendment goes through, the creative industries will have the remedy that it provides rather more quickly than two and a half years.
	I will deal with some of the issues that the Minister raised. First, I will say, in response to his passionate speech-it was none the less welcome for that-that Section 97A of the Copyright, Designs and Patents Act 1988 provides similar remedies to that in proposed new Section 97B. It is vaguer and less explicit, and states:
	"The High Court (in Scotland the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright".
	I could go on with the rest of the provision, but I will not. That is in legislation now as a result of the e-commerce directive. This is not a new, speculative tour de force being proposed by these two Benches, but a realistic new clause building on existing Section 97A.
	I say again to the noble Earl, Lord Erroll, whose contributions in Committee and on Report have been extremely valuable, that this is not directed against consumers. This is directed against ISPs that allow copyright infringement to be hosted on Russian websites. I have seen demonstrations from the creative industries, and it is hair-curling how the business models-

The Earl of Erroll: I am sorry to correct the noble Lord, but an ISP gives connectivity to the internet; it does not necessarily host a website. He is objecting to people who host websites. This is not targeted at ISPs, but at web hosts.

Lord Clement-Jones: The wording of the Act and the wording of the proposed new clause relate to service providers. Therefore in practice it is going to be the ISPs, so I correct the noble Earl in that respect.
	We are simply building on existing Section 97A. This is not about a blind trampling over the rights of internet users or consumers, but about the rights of creators both large and small. Quite often we have heard noble Lords describe the creative industries as the "big boys". There are small creators as well as large creators and the concern on these Benches, and I am sure on the Conservative Benches, is for the smaller creators just as much as for the larger ones. Let us not forget that many of those who have been talking to us during the passage of the Bill represent musicians, actors, film technicians, engineers and the trade unions. All support measures that will stop their members' jobs being affected by copyright infringement. That is of great importance.
	I shall deal briefly with some of the issues raised by the Minister. He seemed to demonstrate an enormous lack of confidence in our courts. I have shown that Section 97A, which the Government themselves inserted into the Copyright, Designs and Patents Act 1988, tackles infringement effectively by way of the courts, and this new provision does exactly the same. The Minister complains that there will be no proper guidance for the poor old judges, who will not be able to work out whether someone is abusing the court process, whether they are genuinely bringing forward evidence, or whether they are seriously trying to oppress people in terms of costs and so forth. I do not have that lack of confidence in the courts, and I think that the Minister needs to reconsider.
	Further, I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. We also cannot accept the Minister's points about the EU technical directive in this case. The noble Lord, Lord Lucas, made the point very effectively. If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.
	The Minister talked of "no defences" and "no guidance", and I have made the point about our judges. Our intellectual property rights judges are extremely well equipped to deal with this matter. On the question of the impact on changing public behaviour and the issue of people migrating to encrypted sites, I do not believe that that is going to be the case. What will happen is that, yes, we will see a change in behaviour, but it will be wholly positive, not negative. As for being precipitate, I could never describe the Government as precipitate. When I look back to the Gowers review so many years ago, it is the very reverse of what the Government are doing. I do not believe that this is precipitate. We have debated in the proper fashion the merits of this kind of procedure and what needs to be done in the course of primary legislation over any number of days. The conclusion validly reached on both Opposition Benches is that we need something extra.
	I do not know why it has taken the Government so long to come to no conclusion whatsoever in this respect, but I believe that this will send a powerful message to our creative industries that we value what they do and that we want to protect what they do. While we do not believe in censoring the internet, we are responding to genuine concerns expressed by the creative industries about the provision of a process whereby their material can be accessed legally in a satisfactory manner. The emphasis is on "legally". I would very much like to test the opinion of the House.

Division on Amendment 54A
	Contents 165; Not-Contents 140.
	Amendment 54A agreed.

Amendments 55 and 56
	 Moved by Lord Young of Norwood Green
	55: Clause 8, page 10, line 40, at end insert "and"
	56: Clause 8, page 10, line 41, leave out from "report" to end of line 42
	Amendments 55 and 56 agreed.
	Amendment 57 not moved.
	Amendments 58 to 66
	 Moved by Lord Young of Norwood Green
	58: Clause 8, page 11, line 6, at end insert-
	"(3A) The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification.
	(3B) The threshold applying in accordance with subsection (1)(ba) may, subject to subsection (3C), be set by reference to any matter, including in particular one or more of-
	(a) the number of copyright infringement reports;
	(b) the time within which the reports are made;
	(c) the time of the apparent infringements to which they relate; and
	(d) any other matter.
	(3C) The threshold applying in accordance with subsection (1)(ba) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report."
	59: Clause 8, page 11, line 7, leave out "enforcement and related matters" and insert "administration and enforcement"
	60: Clause 8, page 11, line 8, leave out "or another person has" and insert "have"
	61: Clause 8, page 11, line 10, leave out "copyright infringement" and insert "owner-provider"
	62: Clause 8, page 11, line 11, leave out from beginning to "; and" in line 16
	63: Clause 8, page 11, line 18, leave out from "costs" to "the" in line 19 and insert "incurred by OFCOM in administering and enforcing"
	64: Clause 8, page 11, line 30, leave out ""copyright infringement" and insert ""owner-provider"
	65: Clause 8, page 11, line 31, leave out from "between" to "; and" in line 32 and insert "persons who are copyright owners or internet service providers"
	66: Clause 8, page 11, leave out lines 35 to 42
	Amendments 58 to 66 agreed.
	Clause 9 : Progress reports
	Amendment 67
	 Moved by Lord Davies of Oldham
	67: Clause 9, page 12, line 15, at end insert-
	"But this is subject to any direction by the Secretary of State under subsection (3A).
	(3A) The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction."

Lord Davies of Oldham: My Lords, I will speak also to government Amendments 72 and 77. The amendments deal with reports required of Ofcom, or which might be required of it under these provisions. In Committee, there were calls from several noble Lords for reports from Ofcom to the Secretary of State to be made generally available. The Government agreed that there was a case for transparency, so long as legitimate concerns about confidential or other sensitive material were borne in mind. These amendments deliver that transparency, requiring that Ofcom publishes the annual progress reports that it is required to produce under Clause 9; and, should it be required by the Secretary of State under Clause 10 to assess whether technical obligations should be imposed, to publish its report to the Secretary of State on that issue.
	The amendments require that Ofcom brings the report to the attention of all interested parties, though one might doubt that there would be much difficulty in attracting their attention to these issues and feel that the amendments are somewhat otiose. Ofcom is also permitted to exclude information if such information would be excluded in response to a freedom of information request. I am sure noble Lords will appreciate the need to protect commercially confidential or other sensitive information. The key is that the reports will be publicly available so that others can also see the main planks of evidence that the Secretary of State will consider.
	We also agreed in Committee to look at whether there was any point in Ofcom being required to continue to produce quarterly reports if it became apparent that they were no longer serving any useful purpose, following the comments made from the opposition Front Bench by the noble Lord, Lord Howard, and others. The House will see that this is now covered by the amendments in this group. I beg to move.

Lord Howard of Rising: My Lords, I thank the Minister for Amendment 67, which meets a concern raised in Committee that to continue with interim reports ad infinitum would serve no purpose. However, I would welcome clarification from him on how long it is expected to take for the notification letters and infringement lists to have an impact on people's behaviour. How long are the Government expected to wait before establishing whether the actions taken have failed or have been successful?

Lord Davies of Oldham: My Lords, that is a rather difficult question. As the noble Lord will readily appreciate, the Government will adopt a judicious approach to these matters. We have accepted the fundamental argument on transparency that was presented in Committee. We have also accepted the Committee's argument that quarterly reports might readily be dispensed with. I imagine that the latter matter will be acted on quite quickly. The other matter will require evaluation, but we will stay true to the commitment that we have made. I am sure that the noble Lord will accept that as a basis for the Government's amendment.
	Amendment 67 agreed.
	Amendment 68
	 Moved by Lord Lucas
	68: Clause 9, page 12, line 18, at end insert-
	"( ) an assessment of the level of subscribers' use of internet access services to obtain legal access to copyright material;"

Lord Lucas: My Lords, in moving Amendment 68, I wish to speak also to Amendments 70 and 71. These three amendments share a common purpose to increase the pressure in the Bill on the rights owners, particularly the larger ones, to move towards providing their customers with what their customers want, in the way that they want it and with the time limits that they want. The failure of the rights industry to do this has been at the root of the problems that this part of the Bill addresses. In some sections they still drag their feet terribly. Indeed, some extraordinarily bullish statements are coming out of Mr Bronfman and others in the United States. They need to understand-perhaps they will understand this from the previous vote as much as anything else-that there are limits to the degree to which we are prepared to punish our citizens in the cause of rights owners who have not played their part in the compact that is copyright.
	The point of copyright is to allow citizens access to creative material. There are two parts to it: one is protection for the creators; the other is access for the citizen. If we are not getting the access to the citizen bit, we are not going to jump up and down on our citizens as a result. The Bill could do with being improved in this respect by flagging up actions that Ofcom needs to take to make it absolutely clear to the creative industry that it has to be constructive and to move on this issue, and that we will not work to maintain over the long term the dissonance between the industry and its customers. The industry has to come into balance with its customers and to find ways of providing the copyright content to them that they will by and large accept so that the desire to go down the illegal route is greatly diminished.
	The three amendments come back to a discussion that we had in Committee in which we said that we really ought to be looking not just at the degree of illegal file-sharing but at the degree of legal file-sharing, and that we ought to look at all aspects of the use of copyright material. There has to be strong co-operation between copyright owners and internet service providers. They really ought to be working together in the way that Apple has shown is possible with iTunes. There is no natural division-it has just grown up that way. Copyright owners kept to themselves and internet service providers kept to themselves. Copyright owners still make it extremely difficult for internet service providers to offer a subscription service for music or film to go with people's internet subscription because the whole business of negotiating rights is extremely slow and lengthy, particularly for the smaller organisations. I am aware, in particular, that the Association of Independent Music has been trying to put together a project in which a certain ISP will work with rights holders to produce these sorts of packages, rather along the lines of what has been done in Denmark. However, there has been immense dragging of heels, particularly by the big American publishers and the interests that they represent.
	There really has to be some force from the Government to shift these discussions along or all the efforts that we are putting into this Bill will come to nothing because of the pig-headedness of the rights holders. I should very much like to see the Government, through this Bill, push hard to make sure that we get a constructive resolution to this matter. We need to do all that we can to avoid having to go through some kind of catharsis, where internet copyright becomes effectively unenforceable, to ensure that we get a change of management in the big copyright-holding organisations and end up with people who will deal with the realities of the modern world. I beg to move.

Lord Howard of Rising: My Lords, my noble friend's and my amendments in this group suggest other measures that could usefully be included in progress reports to assess the success or failure of the procedures that we have just debated. Amendments 68 and 69 focus on legitimate access to copyright material. During these debates, it has sometimes felt as though the Government and some parts of the industry see all internet usage as potentially harmful. We do not want to attempt to limit legitimate use of the internet.
	From a practical point of view, I do not think that a progress report that gives a measurement of unlawful use of the internet under new paragraph (a) will be very useful without a comparison with lawful use. Similarly, I do not see how new paragraph (b) can be useful without an assessment of how many users are availing themselves of these steps.
	I should like to clarify whether the progress reports made under this new section will cover technical measures, should they ever be imposed. It would seem likely that they would, given the wide scope laid out in subsection (1). If that is the case, should not the possibility be specifically referenced? I appreciate that I have not tabled an amendment to this effect, but would the Minister not consider it useful for there to be a requirement in subsection (4) specifically to cover the impact of technical measures? An assessment of how many technical measures have been imposed and how many subscribers they are covering would be valuable information.

The Earl of Erroll: My Lords, I support these amendments in general, as I do the comments of the noble Lord, Lord Howard of Rising. If we do not know whether what we are doing is working, we do not know whether we should continue down that route.
	I do not know whether the word "current" in Amendment 69 would limit the assessment too much and provide an excuse to say, "We can't keep up to date. It has to be a year behind". However, I think that "lawful" in Amendment 69 is probably more legally correct than "legal" in Amendment 68. I believe that we should carry one of the two amendments and the wording can be tidied up at Third Reading. If the Government are not willing to accept the amendments, we should divide on them. I can see that when these reports come out it will be all too easy for Ofcom, which is trying to produce the reports, to say, "Well, we don't have the time or the resources. We can't do that bit of it", and just to do one part of the report. In the future, we cannot make valid judgments of the efficacy of all these laws that we are passing if we cannot see the balanced argument. Therefore, I strongly support the amendments.

Lord Young of Norwood Green: My Lords, as is often the case, I understand why the noble Lords, Lord Lucas and Lord Howard, have tabled Amendments 68 and 69, but they do not add anything to the existing text in new Section 124F(4)(b), which requires Ofcom to include a description of the steps taken by copyright owners to enable subscribers to obtain lawful access to copyright works.
	I am happy to agree with noble Lords that it is essential that copyright owners play their part and make sure that they offer legitimate alternatives in attractive ways-as the noble Lord, Lord Lucas, rightly required-and offer attractive prices that make sense to them, their online partners and subscribers. Without that we will largely be wasting our time on enforcement. The message has been heard loud and clear by copyright owners in this country.
	Amendment 70, also tabled by the noble Lord, Lord Lucas, emphasises the importance we all attach to copyright owners working constructively with partners online to ensure that attractive, legitimate alternatives are available. As I have said before and am happy to repeat, the Government take this very seriously. There will be a three-pronged approach to online infringement of copyright-enforcement, education and an attractive legitimate alternative. However, we do not need to be concerned with how such legitimate alternatives are offered or in conjunction with which partners, if any. Taking music as a convenient example, I am sure that we are just as pleased to see the success of the Apple iTunes Store, for example, as we are with the Nokia Comes with Music initiative or any deal done between the record labels and ISPs. I do not think that the amendment is necessary or useful, and suggest that the existing text does the job as far as ensuring that the efforts of the copyright owners are properly considered.
	Finally, I thank the noble Lord, Lord Lucas, for Amendment 71, which rightly acknowledges the importance of the person who originally creates the material on which the creative industries are ultimately based. However, the focus of these provisions has and should remain tightly on particular players-subscribers, copyright owners and internet service providers. It is the ability of copyright owners, whether the creators of the material or the investors in it, to develop new and compelling legitimate alternatives to unlawful copying that we seek to enable. It is the efforts of copyright owners to develop such products that we are rightly asking Ofcom to report on, along with the other factors. I do not think that it is directly relevant for this to be extended to the efforts that copyright owners make to ensure the position of the creators as a category in the digital marketplace. To put it bluntly, I do not see it as their primary responsibility since any further category of information added to the list under Clause 9 will inevitably result in additional costs or everything else being done a little less thoroughly as a consequence. We should be aware of that. We need to be careful that we do not add what could be described as "nice to have" items-what in other circumstances is often referred to as gold-plating. With the greatest respect to the noble Lord, I think that this amendment would fall within that category.
	The noble Lord, Lord Howard, asked for a progress report on technical measures. The progress report under Clause 9 will look at levels of infringement. I assure him that, if technical measures are in force, they will indeed be reflected in the reports. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Lucas: That was a most helpful reply in all but the last aspect, and even for that I understood the reason. I beg leave to withdraw the amendment.
	Amendment 68 withdrawn.
	Amendments 69 to 71 not moved.
	Amendment 72
	 Moved by Lord Young of Norwood Green
	72: Clause 9, page 12, line 42, at end insert-
	"(7) OFCOM must publish every full report under this section-
	(a) as soon as practicable after they send it to the Secretary of State, and
	(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
	(8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000."
	Amendment 72 agreed.
	Clause 10 : Obligations to limit internet access: assessment and preparation
	Amendment 73 not moved.
	Amendment 74
	 Moved by Lord Howard of Rising
	74: Clause 10, page 13, line 12, at end insert "for the purpose of preventing or reducing infringement of copyright by means of the internet"

Lord Howard of Rising: My Lords, this amendment ties the technical obligation order more closely to the stated purpose of the notification letter and infringement list process set out in Clauses 4 to 9. Although the Minister has assured us that technical obligations are to be used as a backstop power in the event that the letters do not make a significant impact on copyright infringement, there is nothing in the Bill to say that. In the past few years, we have seen too many instances of legislation being used in ways that were not intended when the legislation was passed. This safeguard is more than just a drafting improvement. The order-making power set out in Clause 10 is significant. It allows the Secretary of State to involve himself with the ongoing business of private companies and to limit the provisions of a service to what is likely to be a very large number of subscribers. The Government have accepted many amendments today that make it more likely that such a step will not be taken without proper consideration, so the principle should be acceptable. Amendment 74 makes sure that such a step will be taken only for the purposes we have discussed throughout these proceedings. I hope the Minister will be able to accept it. I beg to move.

Lord Young of Norwood Green: My Lords, I bring good news. I am aware that some concern has been expressed in Committee and outside this House that technical measures could be imposed as part of the Bill for purposes other than addressing the online infringement of copyright. I have consistently made clear that these provisions relate to online infringement of copyright and, frankly, I do not think that any alternative interpretation is tenable. However, I recognise that when we are introducing the option of technical obligations, we must be extremely sensitive to concerns that any possible flexibility could be utilised to use the technical obligations outside the area of online infringement of copyright in future, which is the concern, whatever the purpose of the current Government. That being the case, and in order to ensure that our intentions are crystal clear on this point, we are pleased to accept the amendment.

Lord Howard of Rising: I thank the Minister.
	Amendment 74 agreed.
	Amendment 75
	 Moved by Lord Young of Norwood Green
	75: Clause 10, page 13, line 31, after "providers" insert "and copyright owners"

Lord Young of Norwood Green: This is yet another change that we are proposing in response to the many excellent points that noble Lords raised in Committee. New Section 124G(6) requires internet service providers to give Ofcom any assistance that it may reasonably require in complying with the obligations under Clause 10. Many noble Lords queried why this duty to provide assistance was not extended to copyright owners. We felt that it was unlikely that copyright owners would be in a position to offer much by way of relevant assistance, but we recognise that it might be of use to Ofcom to be able to call upon the assistance of copyright owners when carrying out their Clause 10 obligations. We are therefore proposing these amendments, which impose this additional obligation on copyright owners, to apply the relevant enforcement provisions in Clause 14 to them. I believe that these amendments respond effectively to a specific concern raised in Committee and I urge noble Lords to support them. I beg to move.

Lord De Mauley: I thank the Minister for listening to the concerns expressed in Committee. What happens to the money extracted by this process? The debates in Committee got somewhat convoluted on that point. As I understand it, since a penalty will be awarded when there is a breach of the code, but no measurable identifiable damage is done to a person, the money raised would end up in the Consolidated Fund. I therefore assume that any damages will be paid to the organisation or subscriber who has been harmed. Can the Minister confirm that?

Lord Young of Norwood Green: I cannot, but I will respond in writing.
	Amendment 75 agreed.
	Amendment 76 not moved.
	Amendment 77
	 Moved by Lord Young of Norwood Green
	77: Clause 10, page 13, line 35, at end insert-
	"(8) OFCOM must publish every report under this section-
	(a) as soon as practicable after they send it to the Secretary of State, and
	(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
	(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000."
	Amendment 77 agreed.
	Clause 11 : Obligations to limit internet access
	Amendment 78
	 Moved by Lord Howard of Rising
	78: Clause 11, page 13, line 39, at beginning insert "If the Secretary of State believes necessary, having regard to the progress reports under section 124E,"

Lord Howard of Rising: My Lords, the Minister kindly accepted my previous amendment, which limited the purpose for which technical obligations could be imposed. Dare I hope that he will be equally as receptive to my amendment in this group?
	Amendment 78 seeks to ensure that Clause 11 is genuinely used only as a backstop power in the event that notification letters and copyright infringement lists have not been successful in making a meaningful impact on unlawful copyright infringement. The Minister's Amendments 79 and 82 make significant improvements. They require an assessment under Clause 10 to be carried out before any order is made, and ensure that the initial process has a year to bed down before technical obligations are imposed. Both of these are important concessions, and I thank the Minister for tabling them. However, neither point has regard to the success or failure of the notification process and copyright infringement lists. As it is, it would still be possible for technical measures to be imposed, even though Clauses 4 and 9 were working.
	My amendment would ensure that Clause 11 was resorted to only if necessary. It is possible that the amendment's wording could be improved, but I hope the Minister will agree that it would be beneficial to be certain that the initial measures had failed before moving to the next step. I beg to move.

Lord Young of Norwood Green: My Lords, I intend to speak to the Government's Amendments 79 and 82, which deal with how and when technical obligations may be imposed together. With permission, I will also address Amendment 78, tabled by the noble Lord, Lord Howard of Rising, and Amendment 80, tabled by the noble Lord, Lord Lucas, as they also deal with this part of the Bill.
	Noble Lords will recall that I made it clear on a number of occasions in Committee that the Government considered that the initial obligations should be sufficient and should certainly be given a proper chance to work, and that we most certainly did not regard them as a mere precursor to technical obligations. Very often in this House we seem to ignore these initial obligations and somehow assume that we will proceed to technical measures. However, given the concerns expressed by the House, I agreed to consider amendments that would give effect to that commitment.
	The Government's two amendments deliver on that commitment. They ensure that, under the Bill, the initial obligations will have a minimum of 12 months to work. We saw that as an understandable requirement when this was discussed in Committee, and we have tried to address that concern. Technical obligations cannot be introduced until at least a year after the initial obligations code comes into force. I hope noble Lords will agree that this is the right safeguard to have. Let us not forget that there will also be progress reports.
	In addition to the assessment carried out by Ofcom under Clause 10, we require that the Secretary of State must take into account reports published as part of Ofcom's duties under Clause 9 when considering whether it is appropriate to make an order. It would be very strange if the Secretary of State did not automatically do that anyway, but these amendments make that a requirement on him in those circumstances. Given that assurance and the amendments, I hope that the noble Lord, Lord Howard of Rising, will be pleased and feel able to withdraw his amendment.
	In part, this also addresses Amendment 80 in the name of the noble Lord, Lord Lucas, and I hope that he is content with the 12-month period which we are specifying from the date on which the initial obligations code comes into effect before technical measures can be imposed. It is entirely sensible that the Secretary of State should also take into account reports produced as part of Ofcom's duties under Clause 9. I suggest that there is no need to go any further; the policy intent is clear and a proper time is allowed for the initial obligations to work. I hope that this will satisfy the House.
	I hope noble Lords will agree that these amendments are helpful in ensuring that a proper time is allowed for initial obligations to work, and that all the evidence that is produced through this process is taken into account in the event of technical obligations being considered. I trust that the House will feel able to support the government amendments and that the noble Lord will feel able to withdraw his amendment.

Lord Howard of Rising: One amendment accepted in the past quarter of an hour is a cause for happiness and I must not complain if the Minister does not accept this amendment, but should regard my glass as half full. I beg leave to withdraw the amendment.
	Amendment 78 withdrawn.
	Amendment 79
	 Moved by Lord Young of Norwood Green
	79: Clause 11, page 13, line 39, leave out "at any time"
	Amendment 79 agreed.
	Amendment 80 not moved.
	Amendment 81
	 Moved by Lord Whitty
	81: Clause 11, page 13, line 40, after "providers" insert "in relation to online copyright infringement"

Lord Whitty: The previous group of amendments went sufficiently fast for me not to intervene. My noble friend the Minister will be pleased that I strongly supported his amendments in that group: they have improved Clause 11. However, it probably needs a little more improvement and Amendment 83 addresses one crucial issue.
	I am assuming that the Government will accept Amendment 81 in that it follows the same logic as Amendment 74 in the name of the noble Lord, Lord De Mauley, which my noble friend has just accepted. In other words, we need to make it clear that this refers to online copy infringement and not the rather more broad possibilities suggested in the original version of Clause 11. Clause 11 is a key hinge clause in the area of technical measures. I fully expect the Minister simply to accept that amendment.
	I suspect that there may be difficulties with Amendment 83. However, it is my way of doing something about which I think others have been concerned and on which we have had widespread debates. The whole purpose of this Bill should be to move the bulk of what is currently unlawful file-sharing on to legal measures, which was referred to in our discussion on the group before last. The amendment in the name of the noble Lord, Lord Lucas, referred to it and the 12-month delay allows some time to see if the new system settles in.
	In order for the educational process to have full effect, I had thought that we needed a clear timescale from the passage of this Bill to the point where we could move to the technical measures. Although the Bill has some built-in delays in terms of time for drawing up the code et cetera, which would probably amount to about 18 months from that passage, I felt that we needed a bit longer than that. However, rather than designate a particular timescale, it seemed sensible to bring this back to the House. We will be moving from the notification and the warning phase, and we will have some appreciation of other, I hope, more positive forms of educational activity and some innovative changes in terms of the options that will be available to consumers for more lawful access to copyright material.
	It therefore is quite a step to move from here to the technical measures. I do not know how long will be required to be able to make a proper assessment of the need for that, even within the Government's terms and certainly within the terms from which I am approaching this. The best bet would be, rather than to have a specific timescale, to bring it back to Parliament. Amendment 83, in effect, requires the Secretary of State to lay a draft order here and an explanatory document as to why we are moving to the next stage and subject it to, in effect, the super-affirmative resolution. There may be other procedures which will achieve the same thing, but it is important for Parliament, at this stage in the process, even were the subsequent clauses to be amended more to my liking, to consider this step before we move to it. I therefore think that something like Clause 83 ought to be acceptable to Parliament.
	The narrowing of the effect of Clause 11 to online copyright infringement helps in alleviating that which Amendment 84 is intended to address. The clause states:
	"The order may also specify ... the criteria for taking the technical measure concerned against a subscriber".
	That is a potentially wide-ranging basis, which is not confined to the peer-to-peer file-sharing that the procedure is primarily about. It has been ameliorated by the Government's amendments and acceptance of the amendment of the noble Lord, Lord De Mauley. Nevertheless, it would be better if the paragraph were not there. I hope that the Government will accept Amendment 81 and at least take into account the arguments for Amendment 83. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I have added my name to the amendments. I feel particularly strongly about Amendment 83. Unfettered access to the internet is seen by many people as being on a par with access to other services such as electricity or water. We would not dream of technical measures being taken against those services without an order and an explanatory document being laid before Parliament. This measure should fall into the same category. I repeat my concern that the other place will not have debated the Bill beyond Second Reading. The amendment would at least give it a chance to debate such measures in the future.

The Earl of Erroll: The amendments are essential. The trouble comes from the words "any other consideration" in Clause 11(1)(b). It is not constrained at all, so I presume that it could be for anything that one wanted. There is nothing that puts in the context of being only for online copyright infringement. It is essential to constrain the clause for that reason; without it, the Bill would be seriously affected. I cannot believe that the Minister would want to hand over such powers to someone in the future without knowing what they would be like.
	The noble Lord, Lord Whitty, has come up with a very good idea for dealing with the problem of the world changing fast in ways which we cannot expect and predict. Let us think about these technical measures two years hence. Already, quite a number of internet subscribers have voice-over IP telephones-in other words, internet telephones; and they no longer have a landline, because it saves them a lot of money. Those telephones are essential to them for making emergency calls in the event of heart attack, burglary or other such things. Skype, for instance, contains many elements that are similar to peer-to-peer technology and can look like it. We have therefore to be very careful about how the technical measures are implemented. In the light of the way in which the communications industry, broadband penetration and consumer use of the technology move, we may have to revise the measures very carefully. It is therefore very sensible at least to have something such as the super-affirmative provision-which, for once, I shall accept-to look at the measures; otherwise, I can see a Minister in the future inadvertently ending up in very deep water. Why constrain that Minister or allow mistakes to happen when we can see a car crash or a train crash occurring?

Lord Young of Norwood Green: My Lords, the Government have accepted Amendment 74, tabled by the noble Lord, Lord Howard, which in our view renders Amendment 81, put forward by my noble friend Lord Whitty, unnecessary. I hope that my noble friend will agree that the best place for such an amendment is in Clause 10, where a technical obligation is defined. Everything else then follows with regard to ensuring that the only target of the measures applied under such obligations will be the online infringement of copyright. I hope therefore that he will feel able to withdraw his amendment, confident that its intention has been covered and accepted. We are all agreed-

The Earl of Erroll: My Lords, I am sorry to interrupt, but I am not sure that the Minister has covered the fact that, although new Section 124H(1)(a) covers assessment under new Section 124G, which is inserted by Clause 10, new Section 124H(1)(b) then mentions "any other consideration", which is outside the scope of new Section 124G. That means that new Section 124G no longer applies if you exercise powers under new Section 124H(1)(b) in the Communications Act 2003.

Lord Young of Norwood Green: That is merely intended to cover wider economic considerations-no more than that-so I do not depart from what I have already said about Amendment 81.
	We are all agreed that any decision to introduce technical measures is not to be taken lightly and that Parliament should play a part in the process. We have accepted that there should be a gradual approach and an educative approach. However, I cannot accept my noble friend's proposal, even though he wanted to do it his way, as he said. I do not think that Amendment 83 is the right way of delivering that scrutiny, for two reasons: first, we are having a full debate now as part of the scrutiny of this primary legislation; and, secondly, we have provided that the order will be considered under the affirmative procedure, which means that there will be further parliamentary debate on any order if and when technical obligations are proposed.
	We have said that we expect that our initial obligations, allied with education and new business models, should bring about a significant reduction in copyright infringement, which I know my noble friend desires. However, because we cannot be sure of that, we believe that including a reserve power on technical measures is necessary. The debate has been about whether the process and procedure by which we might use that reserve power is stringent enough and has sufficient safeguards. We have listened to and understood the concerns and we have added these extra significant safeguards. The super-affirmative procedure is appropriate in the particular circumstances of Clause 17, but in this situation all that the super-affirmative procedure would achieve is further delay. I therefore ask my noble friend not to press his amendment.
	The effect of removing the text that Amendment 84 proposes should be deleted would be to remove the clarity in the Bill that the Secretary of State has the power to set criteria for taking technical measures. I am not sure whether the intent of the amendment is to remove what my noble friend Lord Whitty may regard as extraneous language, but I suggest that it is sensible to make it clear in the Bill that we anticipate that the order will contain specific criteria within which technical measures would operate.
	I reassure the noble Baroness, Lady Miller, that we have no intention of withdrawing people's internet access. That would only be at the end of a long process. We feel confident that most people will respond when they are advised that what they are doing is illegal and would take steps to remedy the situation. We are not talking about removing people's internet access on a whim. I should add that government Amendment 82 changes new Section 124H(1)(a) in Clause 11 so that the Secretary of State must take into account any Ofcom assessment and report and any other matter that he considers relevant.
	The noble Earl, Lord Erroll, talked about people who use Voice over Internet Protocol and do not have a landline. There may be such people, but I suggest that they would more than likely possess a mobile telephone. I see the noble Earl nodding. I do not think that we are casting them into the outer darkness of being unable to communicate. I take his point about the changing nature of people's requirements with regard to telecommunications, but I have yet to encounter a person using VOIP who does not have a mobile phone. Maybe someone is out there, but I have not met them.
	We understand the concerns. Moving to technical measures is a serious step, but we will not take it without having gone through the initial obligations, such as the educative and warning processes, ensuring that Ofcom issues progress reports and has to take into account exactly what is happening. With those assurances, I trust that my noble friend will feel able to withdraw the amendment.

Lord Whitty: My Lords, I will certainly not press Amendment 81, but I ask the Minister to look at the points made by the noble Earl, Lord Erroll. My understanding is the same as his: that the amendment to Clause 10 does indeed qualify some of the activities that follow. But I am not utterly convinced-and neither is the noble Earl-that it covers all of them. It is a technical point that can be easily clarified.
	Likewise, on Amendment 84, it is probably true that the noble Lord's amendments ameliorate Clause 11 and I will not therefore press that either. However, Amendment 83 covers an area that embodies the anxieties expressed in a wide range of interventions in the House at various points in the Bill. The move from stage 1 to stage 2 is an important step. If Clause 13 and subsequent clauses remain as drafted, it is a step that will be decided simply by an administrative tribunal not a court. It can involve, as noble Lords have stressed at earlier points, pretty substantial detriment to the subscriber. The subscriber may not actually be the perpetrator, but their home and business or institution could be completely cut off, at least temporarily, from access to the internet. Those are substantial penalties. The need to move into that territory deserves serious parliamentary consideration.
	It may be that the process outlined here is not entirely appropriate, but it should involve something more than affirmative resolution. The first paragraph of Amendment 83 introduces the need for explanatory documentation, which should be a little more than the notes that occasionally accompany affirmative orders. There should be a debate in both Houses of Parliament-as required by an affirmative order-but one that allows Parliament to recognise that this is a serious step and a serious escalation of the process.
	Although I will not divide the House at this point, I will reconsider the issue in the light of any amendments that are made to Clause 13 and associated clauses. However, I suspect that I will ask the Government to return to this. The credibility of the process in this House and among subscribers and others outside will depend on whether we have a controlled process. Do we have a process that takes account of progress towards convincing users of the desirability of moving to lawful systems? Do lawful systems exist to the extent that they are usable-in terms of price, availability and flexibility? In other words, is progress to the desired goal of moving to lawful systems in sight of being achieved or has technology overtaken us, making it less likely to be achieved? The problem of unlawful file-sharing may escalate in that period and therefore these measures, in their full force, will be necessary. We do not know what the outcome of that will be in 18 months-plus time, and we need a position to reconsider. The noble Lord said that this would slow it down. Well, yes, it would with regard to the timing and preparation for a debate in this House, but such a serious step deserves the time of this House and its ability to make a difference to what whichever Government are then in power decide to do about this clause. Whoever aspires to be in government at that stage, one would expect quite a serious political reaction to moving down this road; it would be wise for any Government to get a clear and positive endorsement from Parliament before they did so. For the moment, I beg leave to withdraw the amendment.
	Amendment 81 withdrawn.
	Amendment 82
	 Moved by Lord Young of Norwood Green
	82: Clause 11, page 13, line 40, leave out from "if" to end of line 44 and insert "-
	(a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and
	(b) taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.
	( ) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force."
	Amendment 82 agreed.
	Amendments 83 and 84 not moved.
	Clause 12 : Code by OFCOM about obligations to limit internet access
	Amendment 85
	 Moved by Lord Young of Norwood Green
	85: Clause 12, page 14, line 22, leave out "(f)" and insert "(fa)"
	Amendment 85 agreed.
	Clause 13 : Contents of code about obligations to limit internet access
	Amendment 86
	 Moved by Lord Young of Norwood Green
	86: Clause 13, page 15, line 6, at end insert-
	"(aa) that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);"
	Amendment 86 agreed.
	Amendment 87
	 Moved by Lord Howard of Rising
	87: Clause 13, page 15, line 16, at end insert-
	"( ) that those provisions do not have a significant adverse effect on legitimate users;"

Lord Howard of Rising: My Lords, Amendment 87 is designed to ensure that technical obligations are not imposed on relevant subscribers without an appreciation of the impact that they will have on other users. The word "user" is deliberately chosen in this amendment, as in many cases there may be more than one user of an internet account other than the named subscriber-for example, on communal internet accounts, when many users are channelled through a single subscription account. Regardless of whether a subscriber will be able to protect his or herself from technical obligations by setting up reasonable measures to protect against unlawful fire-sharing, it would be welcome to have some reassurance that no technical obligations will be imposed without consideration for those who may well be the majority, who utilise the subscription responsibility. Paragraph (f) requires the code to ensure that the technical measures are proportionate. Can the Minister confirm that the number of users who would be impacted will be taken into account when deciding what sort of technical measure should be imposed? I beg to move.

Lord Young of Norwood Green: My Lords, while I have much sympathy with the objective of ensuring that people who have nothing to do with online infringement of copyright are left in peace to enjoy all the riches that the internet has to offer, I do not think that this is an amendment that we should accept. One practical difficulty with it would be defining precisely what we mean by "legitimate users". For example, does this mean that it applies to users of accounts not subject to copyright infringement reports, or is this about people who have not infringed in households where the account is subject to copyright infringement reports? Certainly, I would expect that we could tie ourselves into legal knots trying to be clear what we mean, and we may not in any case agree precisely what scope the amendment is supposed to have. Fortunately, I do not think that the amendment is really necessary.
	The other criteria within clause 13(1) serve to ensure that the provisions are properly targeted and focused, and in particular that they are objectively justifiable, not allowed to discriminate unduly against particular people or categories of people, and are proportionate to their purpose. This is certainly sufficient to ensure that subscribers who are not involved in online infringement of copyright have nothing to fear from these provisions. We have outlined the appeal procedures and what we feel would be reasonable measures to protect accounts against lawful infringements. We have taken a number of considerations into account. I hope that in the light of that and the practical definitional difficulties, the noble Lord will feel able to withdraw the amendment.

Lord Howard of Rising: I thank the Minister for his reply and appreciate the difficulties in defining something such as this. I am glad to have on record his reassurance that this point is covered elsewhere in the Bill. I should prefer to see it on the face of the Bill, but I beg leave to withdraw the amendment.
	Amendment 87 withdrawn.
	Amendments 88 to 94
	 Moved by Lord Faulkner of Worcester
	88: Clause 13, page 15, line 22, leave out "or another person has" and insert "have"
	89: Clause 13, page 15, line 24, leave out "copyright infringement" and insert "owner-provider"
	90: Clause 13, page 15, leave out lines 25 to 30 and insert "and"
	91: Clause 13, page 15, line 32, leave out from "costs" to "the" in line 33 and insert "incurred by OFCOM in administering and enforcing"
	92: Clause 13, page 15, line 34, leave out "and"
	93: Clause 13, page 15, line 35, leave out from beginning to "may" in line 6 on page 16 and insert-
	"(4) The provision made concerning enforcement and related matters"
	94: Clause 13, page 16, leave out lines 15 to 18
	Amendments 88 to 94 agreed.
	Amendment 95 not moved.
	Amendments 96 to 98
	 Moved by Lord Faulkner of Worcester
	96: Clause 13, page 16, line 20, leave out "copyright infringement" and insert "owner-provider"
	97: Clause 13, page 16, line 21, leave out from "between" to "; and" in line 22 and insert "persons who are copyright owners or internet service providers"
	98: Clause 13, page 16, leave out lines 25 to 28
	Amendments 96 to 98 agreed.
	Amendment 99 not moved.
	Amendment 100
	 Moved by Lord Faulkner of Worcester
	100: After Clause 13, insert the following new Clause-
	"Subscriber appeals
	After section 124J of the Communications Act 2003 insert-
	"124JA Subscriber appeals
	(1) The requirements concerning subscriber appeals are-
	(a) for the purposes of section 124E(1)(fa), the requirements of subsections (2) to (8); and
	(b) for the purposes of section 124J(1)(aa), the requirements of subsections (2) to (11).
	(2) The requirements of this subsection are-
	(a) that the code confers on subscribers the right to bring a subscriber appeal and, in the case of a technical obligations code, a further right of appeal to the First-tier Tribunal;
	(b) that there is a person who, under the code, has the function of determining subscriber appeals;
	(c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM;
	(d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.
	(3) The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following-
	(a) that the apparent infringement to which the report relates was not an infringement of copyright;
	(b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement.
	(4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.
	(5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done-
	(a) the apparent infringement was an infringement of copyright, and
	(b) the report relates to the subscriber's IP address at the time of that infringement.
	(6) The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that-
	(a) the act constituting the apparent infringement to which the report relates was not done by the subscriber, and
	(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.
	(7) The powers of the person determining subscriber appeals must include power-
	(a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is upheld;
	(b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and
	(c) where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.
	(8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.
	(9) In the case of a code under section 124I, the powers of the person determining subscriber appeals must include power-
	(a) on an appeal in relation to a technical measure or proposed technical measure-
	(i) to confirm the measure;
	(ii) to require the measure not to be taken or to be withdrawn;
	(iii) to substitute any other technical measure that the internet service provider has power to take;
	(b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;
	(c) to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and
	(d) to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM.
	(10) In the case of a code under section 124I, the code must make provision-
	(a) enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable;
	(b) giving the First-tier Tribunal power, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and
	(c) in relation to recovery of costs awarded by the Tribunal.
	(11) In the case of a code under section 124I, the code must include provision to secure that a technical measure is not taken against a subscriber until-
	(a) the period for bringing a subscriber appeal, or any further appeal to the First-tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appeal or abandoned any appeal); and
	(b) any such subscriber appeal or further appeal has been determined or otherwise disposed of.""
	Amendments 101 and 102 (to Amendment 100) not moved.
	Amendment 103 (to Amendment 100)
	 Moved by Lord Whitty
	103: After Clause 13, leave out lines 52 to 55

Lord Whitty: My Lords, this amendment is important and seeks to limit the role of the appeal tribunal to judging appeals that are based on process and due cause, whereby the appeal should decide only whether the rights holder and the ISP have conformed to the provisions of the code. In other words, the appeal would be against breach of process. It is difficult to move to an appeal tribunal set up administratively by Ofcom which would have powers that, in other contexts, would be taken by the court. These are, as I said on previous amendments, severe enforcement measures. They would limit access to the internet, and leaving such measures to a decision of an administrative tribunal without going through the formal process would be against normal civil procedure and the rights of the individual citizen to due process.
	Wider human rights issues are involved, and the importance of the Government following due process in this regard is reinforced by the EU provisions on the subject, in particular those that apply to communications markets under Amendment 138 to the EU telecoms package-which is not yet fully enforced but which will be enforced by the time that this part of the Bill is brought into operation.
	I have argued from Second Reading onwards that sanctions of this order need to be endorsed or imposed by the court process. The clause does not allow for access to the court. It leaves the imposition of sanctions to the new administrative tribunal, the formation and governance of which are not explicit in the Bill but are left to the operational processes of Ofcom. While in many respects I trust Ofcom, it is not right that it should be left to establish a body that in all parallel contexts would be left to the court.
	I scratched my head and talked to people, but I failed to find an equivalent case where a potentially very damaging penalty to households and businesses could be imposed without going through the court system. The Government would do well to think again. I am happy for issues of process to be dealt with by the appeals tribunal, but the imposition of sanctions should be imposed under our general law. There are issues with the Human Right Act, with EU law and with the EU telecommunications package that will need to be taken into account. This procedure does not conform to any of them. I therefore hope that the Government will at least take time, if they do not accept the amendment, to consider the matter. It would be very serious if the whole structure fell on this point. At the moment, it depends on an obscure tribunal that is not yet set up, not designated, not defined, and with its qualifications and role not clear to the House. Noble Lords would be wise not to go down that road at least until further consideration has been allowed both here and-I follow the noble Baroness, Lady Miller, on this point-in another place. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I will briefly associate myself with all the remarks of the noble Lord, Lord Whitty. One of the disappointments in the debate is that this House, and our noble and learned friends and others who are normally so good on due process, have not taken more of an interest in the issues. There are human rights issues here. It is very important that we make sure that due process is followed. I hope that the Front Benches will take a particular interest in this issue: they did not in the last amendment moved by the noble Lord, Lord Whitty, which stated that Parliament should have a chance to look at a super-affirmative resolution with regard to the technical measures. I was disappointed not to hear from either Front Bench on that important issue and hope that they will express an opinion on this.

The Earl of Erroll: My Lords, I will make a couple of general comments that apply to the proposed new clause. They concern the appeals procedure, and where laws or rules might conflict. I am afraid that this will get technical: it is for the people behind the Minister. In an IPv4 world, IP addresses are relatively fixed and easy to monitor. What I had not realised until last night is that in an IPv6 world, we go to 128-bit addresses-and that is already coming in. JANET, the educational internet network, has already moved to it. It needs to, because China also uses it. Come the Olympics, we will probably have to move to it for the BT backbone as well. What I had not realised is that multiple IPv6 addresses are issued, some anonymously-they have to be under tier 3 regulations-to people who are going on the internet. Therefore, some stuff will be impossible to monitor. The question is, which rule will be supreme? The appeals procedure will have to take into account-this must be inserted somewhere-the conflict of rules. I put in the technical stuff to highlight the challenges that will be faced. Something must be added at some stage to say that where rules conflict, there must be adjudication and a ruling about which takes precedence.

Lord Young of Norwood Green: My Lords, I shall start with Amendment 103. I am surprised that the noble Lord, Lord Whitty, wants to see the removal of this provision, which is there to protect subscribers. It will ensure, so far as is practicable, that a subscriber who has successfully appealed against a notification, should not suffer any harm as a result of that particular notification. This would include, for example, a subscriber being taken off a serious infringer list if a successful appeal meant that the subscriber no longer met the required threshold.
	Let us reflect on what will happen under the Government's proposals before a subscriber would become subject to any technical measure: an alleged infringement is detected and matched to his account; a notification is issued and he can contest that; a number of subsequent alleged infringements will have been detected and matched to his account; he will get another notification, which he can also contest; yet further alleged infringements will have been matched to his account, and he will be notified that technical measures will be applied; again, he can contest it. Let us imagine that now he does appeal. The copyright owner and ISP will have to prove that each and every copyright infringement report that led to his being in that position was a genuine copyright infringement and that it was properly matched to his account. It is frankly not credible to suggest that, at that point, there has been an insufficiently rigorous process. Neither can I see what benefit there would be in requiring that a court should look at a case where the subscriber does not appeal but accepts that the notifications are valid and that the measure is properly applied. That was the whole purpose behind building in these appeal procedures at every stage.
	We do not want to apply technical measures to anyone. We want them to stop infringing copyright. We also do not want to drag people before the courts, which is always a stressful experience for anyone, unless there is a genuine need to do so. The appeals route we have set out should offer a less stressful, less expensive route for the first appeal, as we have already discussed and given assurances on, but it does require the final appeal to be heard by a judicial body, ensuring that the subscriber does have the equivalent of the protection of a court. We believe that that is right.
	Finally, the question of multiple IP addresses is so technical in nature that we will reply to the noble Earl in writing. On the question of the EU provisions, we do not believe that anything we are proposing will conflict with them. We have checked the position carefully and we adhere to our view in that respect. I am afraid that we cannot support the amendment and I urge the noble Lord, in taking into account the points I have made, to withdraw it.

Lord Whitty: I am most disappointed with that response. The first part of what the noble Lord said is quite right. I agree that the evidence needs to be subject to appeal and that there should be an appeals tribunal to check the process, the evidence, the association of various offences under one address, and the title. All that can be dealt with by an administrative tribunal. However, my understanding of sanctions at this level is that the term "judicial tribunal" would not apply to the tribunal that is set up indirectly by the Bill. It is important that the Minister should let us know, before the Bill completes its passage through the House-or, if necessary, in another place-quite how the tribunal is to be constituted. Would it have legal representation? If, as the Minister said at the end of his remarks, it is genuinely equivalent to a court, I might at least consider the argument. At the moment, it seems that there is no parallel situation where, at the final point of imposing a sanction, there is no ability to appear before a court.
	The noble Lord referred to this as a "graduated approach". It is a one-step graduated approach-from warning through to second and third warnings, but straight from there to imposing sanctions which could be very detrimental to the subscriber-and, as I said, it will operate regardless of whether the subscriber is the actual perpetrator. The only suggested equivalent to this is the driving licence. If you get three points on your licence, you do not have a genuinely graduated penalty because that is two or three steps of penalty, and at the last knockings, you can appeal to a court.
	I do not think that in any of the sanctions regime operating in our legal system, either civil or criminal, there is an exact equivalent to this. It therefore has wider implications than the providence of this Bill. If there are equivalents and if the nature of the tribunal is such that it is genuinely the equal of a court, will my noble friend spell that out to me and to other noble Lords before Third Reading? If he can manage to convince me, that is fine, but I have seen nothing which would do that at this point. If he cannot convince me, I will want to return to this issue at Third Reading-even if I bring nothing else back. I hope that other noble Lords will themselves consider the implications of this-in particular, as the noble Baroness, Lady Miller, has said, the Front Benchers and Ministers. In my judgment, we are taking quite a significant step here. I hope that the noble Lord can convince me in the interim, but at this point I certainly have not been convinced. I shall withdraw the amendment so that we can proceed with the Bill, but I am deeply worried about these provisions as they stand.
	Amendment 103 (to Amendment 100) withdrawn.
	Amendment 104 (to Amendment 100) not moved.
	Amendment 100 agreed.
	Clause 14 : Enforcement of obligations
	Amendments 105 to 107
	 Moved by Lord Young of Norwood Green
	105: Clause 14, page 16, line 44, after "provider" insert "or copyright owner on whom the penalty is imposed"
	106: Clause 14, page 17, line 1, after "provider" insert "or owner"
	107: Clause 14, page 17, line 4, after "provider" insert "or owner"
	Amendments 105 to 107 agreed.
	Clause 15 : Sharing of costs
	Amendment 108 not moved.
	Amendment 109
	 Moved by Lord Young of Norwood Green
	109: Clause 15, page 17, line 23, leave out from "to" to end of line 24 and insert "a subscriber appeal or a further appeal by a subscriber to the First-tier Tribunal, the subscriber."
	Amendment 109 agreed.
	Amendment 110
	 Moved by Baroness Howe of Idlicote
	110: Clause 15, page 17, line 29, at end insert-
	"( ) payment by an internet service provider of a contribution towards the costs that a copyright owner incurs in generating copyright infringement reports"

Baroness Howe of Idlicote: My Lords, the intention of this amendment is to ensure that the costs incurred by rights holders in generating copyright infringement reports under the provisions of the initial obligations code are taken into account when framing the provision on the sharing of costs. Currently, the Bill makes reference only to the costs that will be incurred by internet service providers and Ofcom. There is a clear lacuna. The copyright owners' costs are nowhere to be seen in the Bill, yet they are and they will be considerable and therefore deserve to be recognised and reflected in these provisions.
	Copyright owners' costs are incurred at the very first step of the notification process. In order to detect copyright infringement within peer-to-peer networks, rights holders have to spend considerable sums, usually with third party providers, to defend infringements, generate the copyright infringement reports and send these to internet service providers. In short, none of the Bill's measures on reducing online infringement works unless copyright owners first spend money. It is sometimes suggested that these costs are optional and that rights holders are under no obligation to incur them. That may be strictly true in the sense that they are not being imposed by statute, but the harsh practical reality is that it is an economic imperative for rights holders to spend money on detecting infringement.
	As has been mentioned in earlier debates on the Bill, the music industry alone stands to lose £200 million of revenue to online copyright infringement this year alone. The cumulative loss between 2007 and 2012 will be £1.2 billion. The figures for the film industry are similar. No industry losing that level of revenue can afford not to invest in combating it. If there is a choice to incurring those costs, it is a Hobson's choice. Rights holders already invest in infringement detection, but currently, much of that activity is to no avail. Internet service providers are under no obligation to process the copyright infringement reports and, indeed, currently none do so. The initial obligations code will change that. It will require ISPs to call on the CIRs. That will make it possible and viable for copyright owners to up the level of detection activity. The Bill means that the ISPs have to process the CIRs, their capacity for dealing with them will increase and there will be meaningful levels of engagement with copyright owners.
	The entire logic behind the measures in the Bill is to reduce unlawful file-sharing by about 70 per cent. That represents a considerable sum. One of the main ways to achieve that is through notification having a deterrent effect on infringements. We have had lots of discussions, and I am sure that we will have even more, on that. That is estimated to involve about 7.3 million people. The more notifications that can be sent to as large a number of infringers as possible, the more marked that effect will be and the better off the creative industries and the whole economy will be. To this end, the Bill must be structured so as to optimise the ability of copyright owners to use the system, not lumber them with the undue burden of all of its costs. Otherwise, we are just creating an elaborate structure that will never be used and, by extension, just will not work.
	There is also a question of fairness to be addressed. We see from the draft statutory instrument on costs that the department has published that rights holders will be expected to meet some of the ISPs' costs of sending notifications. The ratio in square brackets in that document is a 75:25 split. We are told that that is an indicative level, but it has achieved the status of a working assumption. That means that rights holders will have to pay three-quarters of the costs that ISPs incur in meeting their statutory obligations under the Bill. Let us bear in mind, again, that rights holders will have already met 100 per cent of their costs in raising copyright infringement reports.
	Furthermore, it must be borne in mind that it is the copyright owners and the creative sector that has been losing money to infringement over the past decade. The ISPs have not lost any revenue as a result of piracy. Indeed, it is argued by some-although, I agree, not by all-that their businesses have actually prospered in part because of the growth in consumers keen to get online so that they can download music and films, often unlawfully. Again, the amendment is an attempt to bring some fairness and balance to the equation of costs.
	To conclude, the amendment would allow the Secretary of State to take account of the costs necessarily incurred by copyright owners in using the notification system. I hope that it will find favour with the Minister, and I beg to move.

Lord Clement-Jones: My Lords, the noble Baroness introduced the amendment very cogently. I do not want to say much more than that I believe that the way that the clause is drafted is rather strange in the lack of balance between the different stakeholders involved. I very much hope that the Minister will address that in his usual thorough fashion.

The Earl of Erroll: I see that this is an attempt to introduce balance, but if it were to be adopted, we would have to include some exemptions and exceptions. As I mentioned earlier, Queen Mary, University of London, effectively qualifies as an internet service provider because it issues addresses to students, and such things. As I mention, it currently has three security people in charge of 20,000 connections. It would have to take on considerably more staff if it were to issue a lot of these reports. I hope that the Minister will consult the education department and other people who are budget holders about giving a considerably greater allocation of money to some such establishments before just doing that, willy-nilly. I can see why for some commercial operators that may be all right, but certain establishments must be exempted.

Lord Whitty: My Lords, I do not want to be seen as the defender of the ISPs' interests, but the point about them is that whatever costs they incur will be passed on to consumers-all consumers, including those who have never unlawfully file-shared or made any other infringement of copyright. It is therefore in the interest of consumers to ensure that the ISPs do not incur excessive costs. It would be helpful to know whether 75:25 is more or less set in concrete. We could argue that that is a bit of a compromise. I would oppose anything that implied a heavier payment by the ISPs towards the rights holders covering their costs, because all that will end up on the millions of individual consumers, most of whom are not the problem.

Lord Young of Norwood Green: My Lords, we made it clear. We think that the bulk of the cost of the process should fall to copyright owners. They are the main beneficiaries from a change in consumer behaviour from unlawful to legal sources of content. However, we feel that ISPs should share some of the burden, to ensure that they carry out their obligations in an efficient and economic manner and have an incentive both to reduce infringement and to participate in business models-points made during our debate. New Section 124L(2) does not specify the costs that ISPs may be required to share under the cost-sharing order. That is a matter to be consulted on prior to the order being made. In principle, therefore, the order could make the provision in the amendment. However, we do not intend such provision to be made, so we do not think that it would be right to suggest that it might be by particularising it in subsection (3), as the amendment does. It does not seem right to require ISPs to subsidise copyright owners acting to defend their copyright. In fact, that would impose a double cost on ISPs: they would subsidise copyright owners in detecting infringements but have no control over the level of detection activity and cost.
	We tried to be helpful about this in the code. We gave a split of the costs which was indicative-it was not set in stone by any means. People asked us to give them an idea, so we suggested an indicative split. It will be the subject of consultation, and surely that is the right way forward. I cannot see how it can be reasonable, proportionate or fair for copyright owners to have their cake and eat it, in the manner suggested. As I said at the outset, they are the main beneficiaries. It is right and proportionate that they should bear most of the costs. I end by saying that the ratio that we suggested was indicative will be subject to consultation. In the light of my comments, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Howe of Idlicote: My Lords, I am grateful to the Minister for his reply, even though I am not exactly pleased with what he said. I am most grateful to the noble Lord, Lord Clement-Jones, for his support. I am also grateful to the noble Lord, Lord Whitty, and the noble Earl, Lord Erroll, for the points they made, even though they were not in support of the amendment.
	We ought to bear in mind that many rights holders do not have vast sums of money. This creative industry creates huge numbers of jobs and is hugely productive to our economy. If we do not take a proper, balanced and fair look at the costs proposed in the Bill-which I support in many ways-the damage this will do to the industry when it comes into effect will be to our peril.
	I shall bear in mind what the Minister said and read it carefully. However, I am not entirely convinced and I may want to come back with an amendment at Third Reading. In the mean time, I beg leave to withdraw the amendment.
	Amendment 110 withdrawn.
	Clause 16 : Interpretation and consequential provision
	Amendment 111
	 Moved by Lord Faulkner of Worcester
	111: Clause 16, page 18, line 40, at end insert-
	""subscriber appeal" means-
	(a) in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to-
	(i) the making of a copyright infringement report;
	(ii) notification under section 124A(4);
	(iii) the inclusion or proposed inclusion of an entry in a copyright infringement list; or
	(iv) any other act or omission in relation to an initial obligation or an initial obligations code;
	(b) in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to-
	(i) the proposed taking of a technical measure; or
	(ii) any other act or omission in relation to a technical obligation or a technical obligations code;"
	Amendment 111 agreed.
	Amendment 112 had been withdrawn from the Marshalled List.
	Clause 17 : Power to amend copyright provisions
	Amendments 113 to 120 not moved.

Baroness Hayman: My Lords, if Amendment 120A is agreed to, I cannot call Amendment 121 for reasons of pre-emption.
	Amendment 120A
	 Moved by Lord Clement-Jones
	120A: Clause 17, leave out Clause 17 and insert the following new Clause-
	"Preventing access to specified online locations for the prevention of online copyright infringement
	In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert-
	"97B Preventing access to specified online locations for the prevention of online copyright infringement
	(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
	(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters-
	(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
	(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
	(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
	(d) any issues of national security raised by the Secretary of State.
	(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
	(f) the importance of preserving human rights, including freedom of expression, and the right to property, and
	(g) any other matters which appear to the Court to be relevant.
	(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
	(4) Where-
	(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
	(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
	the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
	(5) In this section-
	"copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act,
	"infringing content" means content which is produced or made available in infringement of copyright,
	"online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,
	"operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and
	"service provider" has the meaning given to it by section 97A(3) of this Act.
	(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.
	(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5).""
	Amendment 120A agreed.
	Amendment 121 not moved.
	Clause 18 : Powers in relation to internet domain registries
	Amendment 121A
	 Moved by The Earl of Erroll
	121A: Clause 18, page 22, line 27, at end insert-
	"( ) the failure is an issue reasonably within the responsibility of the registry and the registry has not taken reasonable steps to respond to this failure"

The Earl of Erroll: My Lords, I raised this issue previously. It is a simple matter and I hope that the reason the Minister has not tabled an equivalent amendment is because he is going to accept mine.
	If the Secretary of State is to appoint a manager to run a registry because it is not performing properly, there is no point in doing so if the manager is not able to do anything about the failure anyway. If the failure is an issue which was not within the responsibility of the registry, what on earth is a manager going to do? What is the purpose in putting in a manager? This provision will allow the use of some other external excuse in order to take over the management of a registry. This is a minor protection, one might say, because otherwise there is no point in putting in a manager.

Lord Lucas: My Lords, if the noble Earl were to broaden his remarks a little to say how big a problem would be required before a manager were put in, I might not have to move my next amendment.

The Earl of Erroll: My Lords, I wish to say something about the amendments of the noble Lord, Lucas, which I fully support for the same reason. When we were discussing the Computer Misuse Act and I wanted to change the word "likely" to "more likely than not", it was explained that "likely" meant "more likely than not" in legal terms. We have the same thing here: how serious is "seriously"? These qualifiers are needed to enable the normal person to understand it. However, if the lawyers assure the noble Lord, Lord Lucas, that "seriously" is implied by the previous mention of the word, that may clarify the situation.

Lord Young of Norwood Green: My Lords, what is proposed here is a further test of a relevant failure by an internet domain registry. The effect of the amendment is that a registry could delay or avoid action by claiming it could do nothing because it was not its responsibility. This would leave the Secretary of State powerless to act where a registry had taken reasonable steps, even when those steps had entirely failed to sort things out. We have already placed on record that we would not expect a registry to act beyond its powers to correct any failure that it could not reasonably address. However, to put this in the Bill would cause difficulties, as I have explained.
	The Secretary of State is bound to act reasonably whenever he makes a decision because his decision is always subject to judicial review. I can assure noble Lords that such a decision would not be taken lightly. It is unlikely that a domain name registry would not have the authority and capability, for example, to suspend a domain name, or take down a site using a domain name issued by that registry, if it was requested to do so by the relevant authorities because of its adverse effects on the interests of consumers and so on. For example, a registry such as Nominate, with its exemplary record for dealing with domain name abuse and its best-in-class dispute resolution system, would need no such provision, but it could afford substantial protection to a rogue registry. I have referred to Nominate but there are other registries and, in the future, there is likely to be a significant increase.
	I trust the noble Lord will feel sufficiently reassured to enable him to withdraw his amendment. I shall address the question posed by the noble Lord, Lord Lucas, when we come to Amendment 122.

The Earl of Erroll: My Lords, I find it greatly reassuring that the Minister believes that all Secretaries of State in the future will always act reasonably. I know that they have a duty to do so but, unfortunately, history shows us that this does not always happen.
	It would have been nice to have this provision in the Bill because it clarifies matters. Judicial review can be expensive and time-consuming and is not a realistic route to take. Although I realise that it is there as a longstop, it would be a difficult process to go through. I am sad that the Minister will not accept the amendment, but I have no intention of pressing it.
	Amendment 121A withdrawn.
	Amendment 122
	 Moved by Lord Lucas
	122: Clause 18, page 22, line 29, at beginning insert "seriously"

Lord Lucas: My Lords, in order to hear the Minister's reply, I beg to move.

Lord Young of Norwood Green: I thank the noble Lord, Lord Lucas, for giving me the opportunity to address the point that concerns him. It picks up on the point made previously by the noble Earl, Lord Erroll. We believe that the Secretary of State is bound to act reasonably-not because he is always a reasonable person but because, whenever he makes a decision, his decision will always be subject to judicial review. That is the point I have tried to emphasise. Deciding whether the failure of the domain name registry is serious enough to warrant action is not an exception; neither is it a decision that would be taken lightly.
	The effect of qualifying "adversely" with the word "seriously" would widen the grounds of legal challenge, with all the delay that would entail at a stage when urgent action against a registry may be necessary to protect businesses and consumers. It continues to be our view that it must remain within the Secretary of State's reasonable judgment to decide on the facts available whether the adverse effect is sufficiently serious to warrant intervention, and not within the judgment of the court.
	The hurdle for taking action against a registry is already a high one; the trigger is not light, as I have explained. A set process must be gone through and the registry will have the opportunity to address the Secretary of State's concerns before he can even consider exercising his other powers in this area. I hope in the light of that explanation the noble Lord will feel able to withdraw his amendment.

Lord Lucas: I am grateful for that reply. I beg leave to withdraw the amendment.
	Amendment 122 withdrawn.
	Amendment 123 not moved.
	Amendment 124
	 Moved by Lord Young of Norwood Green
	124: Clause 18, page 22, line 34, at end insert-
	"( ) In subsection (3) "prescribed" means prescribed by regulations made by the Secretary of State.
	( ) Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate."

Lord Young of Norwood Green: My Lords, we have listened carefully to the points made in Committee by the noble Earl, Lord Erroll, about the need for prior consultation. It was always the Government's intention to consult before the Secretary of State decided to exercise the powers. The amendment establishes a requirement in the Bill for the Secretary of State to consult before making regulations prescribing either the practices considered to be a relevant failure of a registry or the arrangements registries have in place for dealing with complaints. I hope this will satisfy noble Lords. I beg to move.

The Earl of Erroll: I thank the Minister for this amendment, which to a large extent answers the concerns I raised on the last amendment. I should probably have grouped them together, but I had not fully understood the implications. I thank the Minister for listening.
	Amendment 124 agreed.
	Amendment 125
	 Moved by Lord Young of Norwood Green
	125: Clause 18, page 22, leave out lines 40 and 41
	Amendment 125 agreed.
	Clause 19 : Appointment of manager of internet domain registry
	Amendment 126
	 Moved by Lord Young of Norwood Green
	126: Clause 19, page 23, line 40, leave out "and any consequences of the failure"

Lord Young of Norwood Green: My Lords, it was never the Government's intention that a registry would have to pay compensation to any party affected by a serious failure of a domain registry. The words,
	"any consequences of the failure",
	were meant to ensure that a registry would ensure that the failure concerned never happened again, as well as correcting the failure itself. We fully realise that these words could be open to misinterpretation so we have decided simply to delete them. Instead, we propose to rely on the fact that when a registry takes steps to remedy a failure, it would want to make sure that the failure did not recur. I beg to move.

The Earl of Erroll: I thank the Minister again. This goes a long way towards reassuring the registries, which are concerned that there are huge consequential loss implications.

Lord Howard of Rising: I add my thanks to the Minister for listening to the concerns expressed in Committee.
	Amendment 126 agreed.
	Amendment 127
	 Moved by Lord Young of Norwood Green
	127: Clause 19, page 24, line 10, at end insert-
	"( ) The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms)."

Lord Young of Norwood Green: My Lords, we considered the points made in Committee by noble Lords on the question of how long the appointed manager to an internet domain registry would be in place. We were particularly struck by fears that a manager sent in temporarily to correct the failure of a registry could end up as a permanent appointment. As I have said, nationalisation of a registry is certainly not the Government's intention. The amendment will put a two-year limit on the order appointing a manager. I hope this will satisfy the concerns expressed by noble Lords. I beg to move.
	Amendment 127 agreed.
	Clause 20 : Application to court to alter constitution of internet domain registry
	Amendments 128 and 129
	 Moved by Lord Young of Norwood Green
	128: Clause 20, page 25, line 25, leave out "and any consequences of the failure"
	129: Clause 20, page 25, line 35, leave out "and any consequences of the failure"
	Amendments 128 and 129 agreed.
	Clause 21 : Functions of C4C in relation to media content
	Amendment 130
	 Moved by Baroness Bonham-Carter of Yarnbury
	130: Clause 21, page 27, line 45, at end insert-
	"( ) In section 295 of that Act (involvement of C4 Corporation in programme-making) in subsection (1) for "programmes to be broadcast on Channel 4" substitute "content for C4C services" and accordingly in subsection (2) of that section for "programme" substitute "content"."

Baroness Bonham-Carter of Yarnbury: My Lords, I declare an interest as an associate of an independent production company. As I have said, we on these Benches welcome the fact that the Bill extends public service broadcasting duties across all of Channel 4's platforms. However, I wish to move this amendment because of my concern, voiced in Committee, that there is nothing in the Bill to stipulate that the content of this extended remit must be commissioned from external sources.
	The current wording allows Channel 4 to produce PSB programmes or online content in-house, provided it is not for the main channel. This could have serious negative consequences for the independent production sector. It also risks allowing Channel 4 to pursue a BBC-style route, while what we want is diversity in our broadcasting system. It is the very way in which Channel 4 commissions its programmes that has resulted in its unique identity and reputation for creativity and innovation. Channel 4 was conceived as an open broadcasting authority, commissioning from independent production companies-a publisher-broadcaster. In-house production goes against its whole ethos.
	In Committee, the noble Lord, Lord Puttnam, sought to reassure me by pointing out that during the four years he has been deputy chair of the Channel 4 board, there has never been any discussion about production being brought in-house. The Minister gave the same reassurance in the letter that he sent me. My response is that if that is the case, why is there such concern about putting it in the Bill? More cynically, who is to say-and here I rather echo the noble Earl, Lord Erroll, on all Ministers following the same path-what will be discussed and agreed to once the noble Lord, Lord Puttnam, is no longer imparting his wisdom as a member of the Channel 4 board? I beg to move.

Lord Gordon of Strathblane: My Lords, I am not sure I can agree with the noble Baroness, Lady Bonham-Carter. After all, Channel 4, although publicly owned, is unlike the BBC, not publicly funded. I would therefore have expected that, in the current economic climate, where all media dependent on advertising revenue are going through a very difficult time and a major struggle even to survive, any amendment to the Bill would loosen the regulatory shackles imposed in an analogue age rather than extend them.
	Bear in mind, too, that the balance of power has changed remarkably since 1982 when Channel 4 was introduced. We rightly needed to give maximum protection to independent producers faced with the then duopoly of ITV and the BBC. That pattern has now changed; some of the independents are now very big. While it is important, as the noble Baroness acknowledged, to recognise that Channel 4's core remit on Channel 4 itself remains subject to the same regulatory regime, it should be given maximum freedom to meet the broader remit that the Bill imposes on it.

Lord Puttnam: My Lords, I again declare my interest as deputy chairman of Channel 4. I will try to clarify the situation, as seen from the channel. First, there is an absolute, genuine, self-denying ordinance. Channel 4, as the noble Baroness said, was created as a route to market for independent production. I make no apology for the fact that I was part of the lobby group in the late 1970s that persuaded Willie Whitelaw and the then Conservative Government to create a quite brilliant invention.
	I speak for myself and not on behalf of the channel, but what the channel seeks to preserve is the ability to innovate. Innovation requires that we invest from time to time in material that has no commercial value whatever. I am particularly keen to protect our 4iP project. It is, effectively, the channel's R&D department. Total expenditure is around 3.5 per cent of the total content budget. To be unable to spend on R&D would, in the long run, potentially cripple the channel. None of us knows how successful the experiments being carried out in the digital area will be, and there is no way of knowing. What is certain is that we are moving into uncharted territory.
	There is no commercial competition for what 4iP does. It works, where possible and most of the time, in partnership with other organisations. My hope-and, I think, that of the rest of the Channel 4 board-is that what will spin out of the activities of 4iP is a new industry, offering opportunities to new production companies in new ways to create new revenues. That cannot be done unless, within the channel, we have the freedom to spend our own money as intelligently as we can on research and development. There is nothing to look for behind that. It is why the channel is grateful to the Government for being given the freedom to pursue the matter in the way it presently does.

Baroness Howe of Idlicote: My Lords, sadly, I do not support the amendment. What we have just heard from the noble Lord, Lord Puttnam, is very important. Channel 4, with which I have had quite a few brushes over the years in one capacity or another, has nevertheless done a pretty magnificent job, particularly in its major role of public service broadcasting, especially for children. As the noble Lord, Lord Puttnam, said, not to have the capacity to spend on research and development at this time of enormous change would be a great pity. I am afraid I cannot support the amendment.

Lord Davies of Oldham: My Lords, I am grateful to noble Lords who have contributed to this short debate, and particularly to the noble Baroness for moving the amendment. I apologise for missing her first two or three sentences. However, I am well aware of her concerns in this area, and we looked at these issues in Committee. In many ways, the other contributors to the debate have largely made the case that the Government make in response to the amendment. Noble Lords are concerned that Clause 21 might encourage C4C to shift public service content from Channel 4 on to other platforms to get round the prohibition. However, I cannot articulate the position any more graphically than my noble friend Lord Puttnam, who has declared his interests. His expertise and knowledge of the issue are valuable.
	We are not reducing Channel 4's public service obligations, so for the foreseeable future the bulk of C4C's public service content will continue to be delivered on Channel 4. Even beyond the licensed public service channel, the publisher-broadcaster model is likely to remain C4C's principal approach. Our worry is that a blanket prohibition on in-house production by C4C, across all platforms, would be especially problematic in relation to new media, where the operation of technical infrastructure, software and content need to be integrated. C4C needs to maintain in-house production capability, even though the great majority of content is commissioned externally. As regards the concept that this is the R&D function translated from a different context, the point holds that this is important to Channel 4. As regards C4C's digital TV channels, although there is currently no prohibition on in-house production, C4C commissions all the original programming on these channels from independent producers. The noble Baroness knows that all too well and I am in great danger of spelling out facts of which she is all too well aware. I ask her to withdraw the amendment but to rest assured that we have considered this issue carefully. We are aware of the anxiety. However, for the reasons that I have given in terms of the role of Channel 4 and what we see for its future, I do not think that her anxieties are necessarily well founded. Therefore, I hope that she will feel able to withdraw the amendment.

Baroness Bonham-Carter of Yarnbury: I thank the Minister for his reply. I accept the need for flexibility expressed by other noble Lords. However, that flexibility already exists. Section 295 of the Communications Act prevents Channel 4 making programmes in-house except to the extent that Ofcom may allow. Therefore, if Channel 4 wishes, it can seek Ofcom's approval to make programmes in-house. We are not proposing any change to that condition. We would have felt happier if we could have persuaded the Government of the need for this amendment. However, I beg leave to withdraw it.
	Amendment 130 withdrawn.
	Clause 26 : Report by OFCOM on public teletext service
	Amendment 131
	 Moved by Lord Davies of Oldham
	131: Clause 26, page 33, line 22, at end insert-
	"( ) OFCOM must publish every report under this section-
	(a) as soon as practicable after they send it to the Secretary of State, and
	(b) in such manner as they consider appropriate."

Lord Davies of Oldham: My Lords, we discussed these issues earlier this afternoon. This amendment requires Ofcom to publish each report prepared on the public teletext service. Ofcom will need to publish each report as soon as practicable after submitting it to the Secretary of State. I have been challenged on how quickly that will occur. I have indicated that the Secretary of State will seek to ensure that Ofcom meets its obligations in that regard.
	The Secretary of State is already required to lay Ofcom's report before Parliament if he decides on the basis of that report to make an order under Clause 27 to remove Ofcom's duty to secure provision of the public teletext service. We consider that to add the publication of the reports as well will raise public awareness of the potential cessation of the public teletext service. Publication will also allow public access to the reports regardless of whether the Secretary of State makes an order under Clause 27.
	The Government take the public interest in the teletext service seriously. This amendment reflects that concern. We know how much the service is valued. The amendment helps to ensure that that is recognised. I beg to move.
	Amendment 131 agreed.
	Clause 28 : Appointed providers of regional or local news
	Amendment 132
	 Moved by Baroness Bonham-Carter of Yarnbury
	132: Clause 28, page 35, line 4, at end insert-
	"( ) must be made subject to such conditions relating to the form, character and quality of the relevant media content as OFCOM consider appropriate,"

Baroness Bonham-Carter of Yarnbury: My Lords, in moving Amendment 132, I wish to speak also to Amendments 133, 134 and 135. This amendment is tabled in order to introduce quality as a requirement when appointing independently funded news consortia to provide regional news for an area. We all have an interest in maintaining well made, impartial news programmes in the nations and regions-ones that attract audiences, appeal to advertisers and complement the ITV or STV brand. This is what the public expect and what they deserve. As it stands, we do not think that the Bill places enough emphasis on the importance of the quality of the programmes made by the news consortia. This amendment seeks to redress this. I beg to move.

Lord Davies of Oldham: My Lords, the Government are pleased to accept this amendment and the other three to which the noble Baroness has spoken.

Baroness Bonham-Carter of Yarnbury: I thank the noble Lord for that very welcome response.
	Amendment 132 agreed.
	Amendment 132A
	 Moved by Lord Puttnam
	132A: Page 35, line 4, at end insert-
	"( ) must be made subject to such conditions as OFCOM consider appropriate for securing the standards objectives in section 319(2)(c) and (d) (impartiality and accuracy in programmes included in television and radio services),"

Lord Puttnam: My Lords, I apologise for the last-minute changing of a couple of words, on the advice of parliamentary counsel, but in essence this is very much the same amendment as published. This is both a small thing and a very big thing. My noble friend Lord Bragg spoke about it in Committee eloquently and at great length. It is a small thing because the world would manage to survive without this amendment, but it is a big thing because it is an opportunity for the House as a whole to make its view clearly felt as regards the direction of travel we take on the plurality and impartiality of news.
	I pulled two completely different but fascinating things out of a newspaper today. The BBC strategy review was published earlier in the week. It states that,
	"global democratisation of opinion and argument [is not] as straightforward as it appears ... Individual plurality may increase but collective, effective plurality decreases-with societies around the world left with fewer reliable sources of professionally validated news. The risk of bias and misinformation and, in some countries, of state control, may grow".
	That is paralleled interestingly by a piece from the Guardian online, discussing some things going on in the United States which concern me a great deal and which, I hope, concern the House. It states:
	"[Al] Gore has become a symbol of the harsh partisanship that is ripping Washington apart. Graham"-
	that is, Senator Graham-
	"by contrast, harks back to a better time, when Democrats and Republicans could occasionally work together for the common good. Let's hope there's a little of that in our future as well".
	I argue that megaphone propaganda damages democracy. The point here is that, as we necessarily migrate into an era in which the difference between what is clearly professional broadcast news and current affairs and what is something that begins to work on the fringes-particularly under the new consortia that have been suggested-there will be a very real temptation to begin to move away from our traditional commitment to plurality and impartiality. The amendment is an attempt to reaffirm this House's absolute commitment to insisting that that would be a move contrary to our notion of democracy, and an affirmation that there is no way in the world that we wish to move down the road that the Americans have chosen towards ever-greater partisanship and ever-greater megaphone politics. I beg to move.

Lord Gordon of Strathblane: My Lords, I agree entirely with everything that the noble Lord, Lord Puttnam, has said. My only point is that I wonder whether the amendment is necessary. Since the output is being broadcast by an ITV contractor, or STV in the case of Scotland, it is bound by the rules of impartiality anyway.

Baroness Bonham-Carter of Yarnbury: I add my support to the amendment of the noble Lord, Lord Puttnam. As I said earlier when I made a request to include quality as a requirement, we all have an interest in the maintenance of impartial news programmes. Plurality, which we believe in, must go hand in hand with a commitment to impartiality. Therefore, we on these Benches support the amendment.

Baroness Howe of Idlicote: My Lords, I certainly support the amendment, unless of course, following the point made by the noble Lord, Lord Gordon, the Minister tells us that it really is not necessary. Otherwise, it is absolutely crucial that we have an alternative provider of impartial and objective news, and every single effort that we can make must be made to ensure that that is the case.

Lord Fowler: My Lords, as the noble Lord, Lord Puttnam, indicated, we have a new situation because of the consortia coming together, and perhaps underlying this is a certain suspicion of the press. I used to be chairman of the Yorkshire Post. We were called Yorkshire Conservative Newspapers but had to change the name when the Queen came to open the building because it was not regarded as satisfactory. By the time I became chairman, it was called Regional Independent Media and everything was left to the editors, as I think is right and proper.
	Having been brought up on the old Times, when impartiality and accuracy were the criteria, I think that what the noble Lord says is very sensible: impartiality and accuracy should be the objective. However, that should not preclude such services campaigning on particular issues. The BBC, which is governed by very much the same confines, also campaigns on particular issues. Therefore, the requirement is very much that any broadcasting organisation should be fair in what it does. Even if it is campaigning, it should be fair about how it presents the campaign. However, the noble Lord has made a very important point. Having slightly disagreed with him at a previous stage, which was very unusual for me, I am very glad that our alliance now continues as before.

Lord Maxton: I want briefly to raise a question that I am sure the noble Baroness, Lady Buscombe, has raised in the past on this issue. If part of the consortium is a local newspaper group, it cannot be bound-and certainly the noble Baroness, Lady Buscombe, would insist that it cannot be bound-by the laws of impartiality that cover television. That may be perfectly fair in terms of its newspaper production but, if it is part of a consortium and it puts a news item on its own website-the newspaper's website, rather than the news provider's website-do the laws of impartiality still cover that? I am slightly confused by that.

Lord Davies of Oldham: My Lords, I was sitting here blissfully enjoying the unanimity being expressed in all parts of the House. My noble friend Lord Gordon had a slight anxiety about whether the amendment was necessary. He is absolutely right that a condition requiring impartiality could already be imposed by Ofcom under the clause as it stands. However, making it mandatory in these terms reinforces the values to which all noble Lords have subscribed in this debate, and that is why it is neither otiose nor unnecessary but helpful. I shall therefore take a positive line on the amendment, which is just as well as I have just accepted amendments from the Liberal Democrat Front Bench and I am not sure that my noble friend Lord Puttnam would take too kindly to me being resistant to his.
	Although all the other points raised were expressed in terms of favouring the amendment, which the Government are prepared to accept, there is one point to which I need to reply. My noble friend Lord Maxton asked what would happen when newspapers were part of the IFNCs. The requirement would apply to the IFNCs' branded output only, regardless of the individual or media affiliation. It would not apply to the content produced by the newspaper member. I am sure my noble friend appreciates that the newspaper will maintain its independent stance when it operates under its own brand and funding. However, noble Lords should remember that we are talking here about public funding, and that is the burden of the amendment moved by my noble friend Lord Puttnam, which I am happy to accept.
	Amendment 132A agreed.
	Amendments 133 and 134
	 Moved by Baroness Bonham-Carter of Yarnbury
	133: Clause 28, page 35, line 5, after "such" insert "other"
	134: Clause 28, page 35, leave out lines 16 and 17
	Amendments 133 and 134 agreed.
	Amendment 134ZA not moved.
	Amendment 134A
	 Moved by Baroness Bonham-Carter of Yarnbury
	134A: Clause 28, page 35, line 30, at end insert-
	"( ) Before inviting applications for an appointment under this section to provide news for all or part of a designated Channel 3 area, OFCOM must-
	(a) give notice to the provider of the regional Channel 3 service for the area, and
	(b) have regard to any representations made by the provider of that service during the period specified in the notice.
	( ) That period must end not less than 28 days after the date on which OFCOM give the notice."

Baroness Bonham-Carter of Yarnbury: My Lords, as was discussed at an earlier stage, it is important that any new arrangements for independent news in the nations and regions proceed in a spirit of partnership and agreement between the Government, the regulator and the Channel 3 licensees. As currently drafted, Clause 28 does not fully capture that intent, as it would in effect entitle Ofcom to select an appointed independent news provider and impose that provider on an existing Channel 3 licensee. These news programmes will appear on the Channel 3 network, and it is essential that they are compatible with the high-powered style of the channel and that the Channel 3 brand is not compromised.
	The purpose of our amendment is therefore to provide greater confidence on the part of the Channel 3 licensees that their views will be taken fully into account when and if the rollout of IFNCs proceeds in 2012. It would place a requirement on Ofcom to notify Channel 3 licence holders that it will invite applications for appointment, and it would place a further requirement on Ofcom to have regard to representations received from those Channel 3 licence holders. The definition of "representations" is already covered in relevant sections of the Communications Act.
	Our amendment is designed to ensure that Ofcom has proper regard to what the Channel 3 licence holders say, and this includes objections to a proposal going forward in a particular nation or region. Given that the licensed broadcasters continue to carry all the statutory obligations and the necessary compliance risk for the continuing provision of the new service, this seems entirely right and fair. I would welcome further assurance from the Minister that if this amendment is accepted, the Government will ensure that the long-term implementation of IFNCs is carried forward with the full involvement and consent of the licensed broadcasters. I beg to move.

Lord Fowler: I rise briefly to support what the noble Baroness has said. The main point regarding the important providers of regional or local news is that we want the system to work well. ITV is crucial in this, and it seems to me that it has made a good offer. On the one hand, this will take from it responsibility for a £50 million per year cost; on the other hand, it has to broadcast the output of the new consortium on ITV1 and ensure that it makes good viewing for local audiences. It is important to have local choice in television, otherwise we will be turning the clock back to a period when the BBC had a monopoly. I do not think that anyone wants to go back to those days, including the BBC. It wants competition as well.
	This amendment is therefore important. If the Government can express in the legislation their intention that the new consortium should be selected with the agreement and full involvement of the Channel 3 licensee, that will be all to the good. I thoroughly support what the noble Baroness said.

Lord Gordon of Strathblane: I, too, support the noble Baroness's amendment. I spoke to an amendment roughly to this effect in Committee. From the viewer's point of view, the transition from the IFNC's output to the rest of the programmes should be absolutely seamless. He or she should not be able to detect the different origination of the output.

Baroness Howe of Idlicote: I also add my support to the amendment. It is clearly important that the brand that is attached to the ITV spectrum is maintained. It should be involved in every aspect and also ensure that the regional news is of the quality that we all expect it to be.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords because their comments would have been made from this Dispatch Box if they had not been articulated so ably by all those who have spoken. I shall dwell a little longer on the issue because the noble Baroness made one or two specific comments on which I want to give assurances and put the Government's position firmly on the record.
	We believe that securing news plurality under this clause should not be to the detriment of Channel 3 licence holders, as the noble Lord, Lord Fowler, said. The Government agree that Channel 3 licence holders should have more than just a say on whether an appointment should be made. Indeed, they should have the right to make direct representations to Ofcom where that appointed news service is to be carried in the schedules. This amendment clearly provides for more than just enabling Ofcom to take account of Channel 3 licence holders' views. In securing a high-quality plural local and regional news services, Ofcom will want to see Channel 3 licensee co-operation-a point which the noble Baroness particularly emphasised. Representations made in this context could include anything of material importance and relevance to a Channel 3 licence holder. For instance, it could well involve objections or matters to do with schedule or brand protection.
	We expect the consultation and representation process to achieve consensus between Ofcom and the Channel 3 licence holder before any appointment is made, especially where it directly affects the Channel 3 licence holder. In exercising its functions under this clause, Ofcom's duties in law will apply. As a public body, it must act reasonably and give proper and due consideration to all representations received, as well as ensuring that its regulatory activities are transparent, accountable, proportionate, consistent and targeted. We would be surprised if Ofcom were to proceed on any other basis. I am grateful for the clarity that the amendment offers and I am pleased to accept it on behalf of the Government.

Baroness Bonham-Carter of Yarnbury: I thank the Minister for his welcome reply. I have trumped the noble Lord, Lord Howard, in accepted amendments. I also thank the Minister for the extra reassurance that he has provided that the interests of Channel 3 licence holders will be properly recognised.
	Amendment 134A agreed.
	Amendment 135
	 Moved by Baroness Bonham-Carter of Yarnbury
	135: Clause 28, page 35, line 36, leave out "(5)(e)" and insert "(5)"
	Amendment 135 agreed.
	Amendment 136
	 Moved by Lord De Mauley
	136: Clause 28, leave out Clause 28

Lord De Mauley: My Lords, we have a number of concerns with Clause 28. Noble Lords will recall from previous debates that we do not believe that the solution to the problems in the regional and local media sector is more taxpayers' money. I did not find the Minister's comments in Committee particularly reassuring as he could give no clear indication of when and how these independently financed news consortia would become commercially sustainable.
	The establishment of consortia that will be reliant on the state for subsidy is an approach to the need for plurality in local news which in our view is not sustainable. It seems almost a slur on the media to suggest that they cannot adapt to the new realities of the media market and become commercially successful. Indeed, a number of the organisations involved in bidding for the pilot schemes have indicated that they are doing so only because their rivals are also bidding, not because of a desperate need for public subsidy. They are quite capable of innovating, adapting and creating new models of local news provision that the public will like and which will be financially independent from Government.
	That brings me to our second point. If we become reliant on public subsidy to provide regional news we are creating a system under which the appointed news providers would need to keep Ofcom, as the primary source of their funding, happy to an even greater extent than they would need to keep audiences happy. I cannot believe that that is good for the future of regional and local journalism. Equally worrying are the practical ways that this clause would implement the Government's preferred model. We feel that the clause as drafted gives Ofcom far too much power in determining the output of the appointed news provider. It can shape the form and character of any media content that is produced. I am worried that the result will be an official world view as directed from Riverside House. I am sure this is not what Ofcom intends but it could be the result.
	I see many problems with Clause 28 and I gently remind the Minister that my honourable friend in the other place described it as a "red line" for our party. I hope that our concerns will be heeded as opposition to its provisions seem to be growing. With so many problems apparent, I beg to move.

Lord Gordon of Strathblane: My Lords, I fully understand where the noble Lord is coming from and I see a lot of problems with intervening in one section of the market and not others. I can see local newspapers saying, "If there is Ofcom money going for regional television why not for local radio or newspapers?". I see the problems, but on the other hand the noble Lord has to reflect on the fact that ITV has more or less said in terms that it cannot continue to provide regional news. Is he suggesting that we simply take away the licences and give them to someone else whom he feels will be able to provide regional news in the modern marketplace, or do we acquiesce in regional news on television being carried only by the BBC? There are real problems. This is not a perfect solution, but it is the least bad one.

Lord Puttnam: The noble Lord, Lord De Mauley, made his point extremely eloquently, and it leaves me fairly conflicted. My experience of 20 years at Anglia Television makes me realise how difficult it is to create a financial model that works in this area. I thought long and hard about something that the noble Lord, Lord Howard, said in Committee. He talked, rightly, about something that will permanently remain in the quasi-public sector. I am not in favour of that. What attracts me in the Government's proposition is the idea of getting a new shape, a new player, into the marketplace and then finding a mechanism whereby it can move off into private hands. I may be being Pollyanna-ish about it, but there is a lot in what the noble Lord, Lord De Mauley, said and in the points made by the noble Lord, Lord Howard, in Committee. On balance, I support the Government on this, with some concerns.

Lord Fowler: My Lords, I am the chairman of the Select Committee on Communications which made the proposal that the Government are acting upon, so I do not intend to jump overboard at this point. I believe it is a sensible proposal, and I will continue to support it. I understand what my noble friend said. He made the argument extraordinarily well. I shall make two points. The argument about public subsidy needs to be treated with a certain amount of caution because regional television has been supported by the implied subsidy from analogue broadcast. That is the whole point. Analogue has given an advantage to companies such as ITV, which is creating the new situation and the new position. Explicit subsidy and support may be a new concept, but implied and real subsidy and support is not.
	What worries me more than anything else is the idea that at a regional level BBC television will have a monopoly. I do not want that. It would be a retrograde step. I sometimes say it takes us back to the 1950s, but it is worse than that because in the 1950s, at least we had strong regional newspapers. You do not have to be a great media expert to understand that regional newspapers are not what they were. I was chairman of a regional newspaper group about 10 years ago, and it has changed radically even in that small time. We will not go back to the old days. These points need to be considered, not least, I humbly suggest, by my own party because we do not want to have a position where at regional level the BBC determines the political and news output for television. That would put a vast amount of power in the hands of news editors and correspondents.
	I regret that that is not entirely helpful to my noble friends, whom I support and like in every conceivable way, but I hope that they understand that I am not going to resile from the recommendations and proposals that I made only a short time ago.

Lord Davies of Oldham: My Lords, what is the role of a Minister when friends fall out in the Opposition? The noble Lord, Lord Fowler, has articulated an important case that emerged from his committee and which we have taken seriously. It is not a question of falling out among friends but of different perspectives in different parts of the Opposition. He will not be at all surprised or delighted that I am on his side on this rather than the official position put so ably by the noble Lord, Lord De Mauley. I congratulate him on the clarity with which he presented his reservations about the Government's position. However, even if we descend to the point that my noble friend Lord Gordon suggested we should-namely, that the Government's position is the least bad solution to a difficult problem-that is where the Government will rest.
	I accept the point that my noble friend Lord Puttnam made. There is nothing about the Government's proposals on this that are hard and fast for the future of news provision in this country. They are a response to the ever-pressing, growing problem, clearly identified by the noble Lord, Lord Fowler, of the decrease in other forms of expression of news and the crisis affecting television, which affected regional newspapers earlier. I heard what the noble Lord, Lord De Mauley, said about resistance to public subsidy, but the Government are setting up pilots to test the market and see whether the position proves effective and viable. There is no commitment that this should be long term. If the hopes of my noble friend Lord Puttnam are fulfilled-and we can have hopes in this area, given the creative abilities of our people in the media-why should this not be seed corn that is so successful that public funding becomes unnecessary?
	The Bill is not the place to reach decisions on funding, but the House knows that the Government are moving judiciously in this area. This is not setting up a new brand of public subsidy of news, but creating opportunities for alternative news fora and creative forces to develop and present the only challenge to what would otherwise become a BBC monopoly, not even checked by the regional press, which did so in the past, but is regrettably not in a position to do so now. These are genuine shifts in the marketplace.
	We should be concerned to safeguard the plurality of news and the competitiveness of news provision, and that is what the Government are concerned to do. I know the ogre that can be created. It is that this will be subject to the Orwellian monstrosity of Ofcom control of news: a deep-laid government plot to ensure that there is a monopoly controller who will eye us all from the television set, which will be the only provision we will get. No; that particular ogre will not materialise. Editorial judgment and control will remain precisely where they should be-with the news providers, who will need support in the early stages.
	This is about securing the quality of delivery that audiences expect. They have high and proper standards when it comes to news provision. Every opinion poll that is ever carried out on television and news provision in this country emphasises that the public value the provision of news because of the standard and quality which all providers in this country have maintained thus far.
	This is clearly a sticking point for the Opposition. They have made it clear that they want this clause out of the Bill, but unless action is taken, exactly the position described by the noble Lord, Lord Fowler, and his committee-the deliberations of his committee were important in these areas-will pertain, and the plurality of local and regional news and the news-gathering enterprise that underpins it will erode very quickly. The problem is that the erosion is quick at the present time and it is not obvious that the pace will not accelerate.
	The clause is of great importance. I know that I will not persuade noble Lords opposite-after all, they have identified their position with clarity and force-but I hope they will not think it advisable to press this issue to a vote. Clause 28 deserves to be in a Bill that is part of a coherent whole in tackling this important issue. I have no doubt that noble Lords opposite recognise the importance of the issue. They cannot produce an alternative within the framework of the Bill, so I hope that they will allow the clause to remain and that the noble Lord, Lord De Mauley, will withdraw his amendment.

Lord De Mauley: My Lords, I thank my noble friend Lord Fowler and the noble Lords, Lord Gordon and Lord Puttnam, for their contributions. I respect and appreciate their views. These things are not easy, as the noble Lord, Lord Puttnam, acknowledged. Noble Lords were generous to appreciate our preference for a commercially viable solution. I am therefore not at all surprised at the Government's response. Indeed, I am pleased that the Minister at least acknowledges the ambition to wean the IFNCs eventually off public money.
	Even so, I respectfully say that it does not bode well for the Exchequer in what will be very difficult times-or, for that matter, for the future of regional and local news-but I recognise that discretion is the better part of valour, so for this evening I beg leave to withdraw the amendment.
	Amendment 136 withdrawn.
	Clause 30 : Digital switchover
	Amendment 137
	 Moved by Lord Howard of Rising
	137: Clause 30, page 36, line 33, after "to" insert-
	"(a) "

Lord Howard of Rising: My Lords, I tabled Amendments 137 and 138 again simply to get more detail from the Minister, as his assurances about these points were not wholly convincing. The amendments would give the Government an explicit requirement to take into account the views of radio listeners and local and community stations. The Minister argued that this was unnecessary because of the breadth of the requirements to consult that are already proposed and the commitment to consult widely. The problem with such vague assurances is that they can be quickly forgotten. The BBC currently states that the views of the BBC and Ofcom should be given due regard before the Secretary of State nominates a date for the digital switchover. It does not say too much about consulting widely or taking into account in any way those who are most affected by the switchover-the listeners. I hope the Minister can give more encouragement that the listener will not be forgotten in this whole process. I beg to move.

Lord Clement-Jones: My Lords, I commend the amendments, which are a very constructive way of seeking further assurance from the Minister. Indeed, they very much reflect the concerns that I expressed from these Benches in the Clause 30 stand part debate in Committee. Assurances about the future of analogue radio in particular are so important. The noble Lord, Lord Young, and I engaged in a slightly semantic conversation about whether FM's existence would be perpetual or whether it would simply be there for the long term. I think the assurances were that it would be there for the long term, which did provide some reassurance. However, the interests of the ultra-local stations and the consumers of the product of those stations are extremely important, and I very much hope that the Minister can cast more light on the future of analogue in the face of the digital switchover.

Lord Fowler: My Lords, I congratulate my noble friend on the amendment-I am now rowing back frantically-on a very important issue. It is so important, in fact, that the Select Committee on Communications is currently engaged in an inquiry on precisely this-the digital switchover-although a number of reasons have been adduced as to why it should be called not a switchover but various other names.
	I do not intend to pre-empt our report, but I must say that it is generally a very important issue with the public and that there will be a public outcry if we get the radio digital switchover wrong. There could be a very big row indeed about this. My only reservation about the amendments is that I can think of quite a number of other issues on which I would like the Government's assurance. There are, for example, 20 million car radios out there. What will happen to those? How will they be converted? What are the plans? There are so many issues here that either we will have a totally comprehensive list or we will simply have to ask the Minister at this stage for his current views. I think I probably speak for the committee when I say that there is public confusion at the moment about what exactly the plans mean to the individual consumer, and I cannot believe that that is a sensible way of proceeding. My noble friends on the Front Bench have raised a crucial issue to which we will have to return again, and very soon.

Baroness Howe of Idlicote: My Lords, I absolutely agree with what has been said so far. This is one of the greatest eye-openers. As we have proceeded with this Bill-particularly as it has run parallel to the deliberations of the Select Committee which the noble Lord, Lord Fowler, is chairing so ably-we have come to realise just how important radio is to so many people, whether to the disabled or to all of us, listening as we do for a vast amount of our time to the radio. However, this is clearly one of the areas in which there is still a need to reassure people locally. The idea was that analogue transmission could be switched off once 50 per cent of listening is to digital radio. Then there was the business of how long FM would be available once it is more or less accepted that there will be a change. As regards the production and selling of cars, the issue is when there will be sufficient technology to convert radios already in cars and to convert some DAB radios to the right level.
	No one is trying to argue for a moment that the quality of digital radio will not be valued. But getting to that point will need a lot of reassurance to citizens. I would be grateful, as would I am sure other noble Lords, for further reassurance from the Minister that FM will be available ad infinitum, but certainly well beyond the point of switchover. That would do a great deal to reassure noble Lords who have looked into all this. But much more importantly, the citizens and the consumers-I come back to them because I am looking at this issue from both viewpoints-are crucial. I hope that the Minister will be able to give that reassurance.

Lord Gordon of Strathblane: My Lords, I do not have any problem with the sentiments behind the amendments. The only problem is that if those points are listed, it would look as though that is what the Government or Ofcom should give priority to, but they are only three of a myriad number of conditions to which they must give attention. Specifying that is almost counterproductive.

The Lord Bishop of Manchester: My Lords, I rather echo that point. In Committee, I expressed, as did many noble Lords, concerns about local and community radio stations and about the extension of FM. These are very important matters, but as other noble Lords have indicated in this short debate, there are other areas as well. In all this, I hope that we will continue to recognise that, while it has often been said that the switchover for television has gone very smoothly, the complexities in relation to radio are far greater. While supporting so much that lies behind these amendments, it would be a great shame, in a sense, to wreck it by omitting rather than being inclusive.

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have spoken in this short debate, particularly the right reverend Prelate the Bishop of Manchester and my noble friend Lord Gordon, for identifying the weaknesses of the amendment and the nature of the issue on which the Government need to take care.
	Perhaps I might say that if I was not going to take care after the Opposition Front Bench and the noble Lord, Lord Clement-Jones, had spoken in support of the amendment, I certainly was after listening to the noble Lord, Lord Fowler. First, he told me, as if I did not know, that there could be the most enormous row if this switchover went wrong. I could not agree with him more and I accept entirely what the right reverend Prelate has said. The switchover from analogue to digital for television is much easier than this exercise because of the diversity of radio opportunities and provision. But the noble Lord, Lord Fowler, produced an even greater anxiety for me when he mentioned car owners. He is right that we would not dare to get that wrong. I know that we are not far from a general election, but the idea that the Government are about to alienate 20 million car owners by telling them that their radios are defunct, out of date and will not work is somewhat unrealistic. The conversion of car radios is an important point that has to be established before a digital switchover could conceivably be considered a success.
	We have been clear that an affordable in-car converter is key to the success of digital radio switchover. There are already devices on the market which will convert an FM car receiver to receive DAB. One would predict that this market will expand very rapidly. Very few markets move quite as quickly as the car accessories market, which helps to guarantee the sale of cars.
	That point therefore will be taken into account, as will the other points about the importance for the Government of effective consultation before such a switchover could take place. We have made clear that, for the foreseeable future, the Government will consider FM radios to be part of the broadcasting firmament. Radio stations will want to combine to broadcast on FM to take account of the points that the right reverend Prelate drew to the attention of the House.
	What date will all this be effected? That is a pointed and precise, but nevertheless very difficult, question. We have indicated that 2015 is ambitious, although it is achievable. If we do not set a target, there is no stimulus to all those who can make a contribution to effecting this successfully to get to work and do so. So we want a date and have identified 2015, but we recognise that it is a challenge. However, we accept the concept behind the amendments; namely, that the fullest consultation will be necessary. Otherwise, the almighty row anticipated by the noble Lord, Lord Fowler, will descend upon the Government who get it wrong.
	Why do I resist the amendments, as we did in Committee? It is simply because consultation is written into the Bill already. We could not dream of going forward or of proposing that the Government could go forward with an issue of such significance to our people without the fullest consultation in order to guarantee that we do not fall into those dreadful traps to which noble Lords have called attention. Again, I am grateful to the Opposition Front Bench for drawing our attention to the necessity for care and consultation. That is part of the Bill and the amendments are unnecessary. Having stimulated a further debate, after the extensive one we had in Committee, I hope that the noble Lord will withdraw his amendment.

Baroness Howe of Idlicote: My Lords, can the Minister clarify the point about which a lot of people are concerned; namely, that whenever the point of switchover occurs, FM will continue beyond that point? A lot of small operators are very concerned about that.

Lord Davies of Oldham: My Lords, I wanted to indicate that. If I did not make it clear enough in my reply, we see FM continuing, but we also see the kind of criteria that will be necessary before we begin the process of significant switchover. As I have indicated, the Government will move with the greatest care with regard to this issue, as we have with television switchover. Noble Lords will know of the care that we have taken to make sure that groups who might not be able to make that switchover effectively because of limited resources are given support. Radio is much more complex and difficult, as the right reverend Prelate made clear. The Government are fully seized of that, which is why consultation is written into the Bill on this issue.

Lord Howard of Rising: I thank the Minister for his comments, and I thank my noble friend Lord Fowler for his support. I was delighted to hear some support from the noble Lord, Lord Clement-Jones, after the sandbagging that I received from the noble Baroness, Lady Bonham-Carter. Having raised the issue and heard how sympathetic the Minister is to the potential problems-even though he dodged with his customary skill committing himself specifically to consulting listeners-I beg leave to withdraw the amendment.
	Amendment 137 withdrawn.
	Amendment 138 not moved.
	Consideration on Report adjourned until not before 8.40 pm.

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2010

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2010 Lord West of Spithead to move that the draft Order laid before the House on 1 February be approved. 8th Report from the Joint Committee on Statutory Instruments and 16th Report from the Joint Committee on Human Rights
	8th Report from the Joint Committee on Statutory Instruments

Motion to Approve

Moved By Lord West of Spithead
	The draft order laid before the House on 1 February be approved.
	Relevant documents: 8th Report from the Joint Committee on Statutory Instruments and 16th Report from the Joint Committee on Human Rights.

Lord West of Spithead: My Lords, the purpose of the order before the House today is to renew Sections 1 to 9 of the Prevention of Terrorism Act 2005, which expire after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of the order will be to maintain the powers set out under the Act until the end of 10 March 2011. This will allow us to continue to use control orders to tackle the threat posed to the public by suspected terrorists whom we can neither prosecute nor deport.
	It is important to remember that there have been a number of significant terrorist attacks, and attempted attacks, on our country and across the world in recent years. These have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people.
	I can assure the House that the threat to the United Kingdom from international terrorism remains real and serious-the threat level was again raised to "severe" by the Joint Terrorism Analysis Centre on 22 January. Recent trials and investigations have shown that numerous terrorist networks are continuing to plan and attempt to carry out attacks.
	There are no simple solutions to cope with this threat. We need a broad range of responses to reduce the risk of further terrorist attacks. All these responses must ensure public security while protecting our values and civil liberties. These values underpin all our work, as is already clearly articulated in our counterterrorism strategy, CONTEST.
	It bears repeating that prosecution continues to be, and will always be, our preferred approach when dealing with suspected terrorists. Terrorists are criminals who attack the values that we all share. Criminal convictions demonstrate this in the clearest fashion. There have been 217 convictions for terrorism-related offences since 11 September 2001, with 29 further defendants awaiting trial at 31 March 2009. These figures demonstrate the considerable success that the police and intelligence agencies have had in disrupting terrorist plots and the success that the Crown Prosecution Service has had in prosecuting these individuals.
	We remain committed to enhancing further our ability to bring forward prosecutions. We introduced new offences relating to terrorism in 2006 and 2008 to ensure that as much terrorism-related activity is prosecutable as possible. We have made provision for new mechanisms to facilitate prosecution, such as post-charge questioning.
	As set out in the Statement to the House on 10 December by my right honourable friend the Home Secretary, the Government are undertaking further work to establish whether the problems identified by the programme of work recommended by the Privy Council Review for the introduction of intercept as evidence are capable of being resolved. We will report back by Easter.
	I remind the House that the original Privy Council Review report noted the review by independent senior criminal counsel of nine current or former control order cases. That concluded that the introduction of intercept as evidence would not have enabled a prosecution to be brought in any of those cases.
	Where we cannot prosecute a suspected terrorist, and the individual is a foreign national, we seek to deport him. In this regard, deportation with assurances agreements which allow us to assess more precisely whether a particular removal is in conformity with our international human rights obligations, and to demonstrate it at appeal, remains a crucial tool in our counterterrorism efforts.
	Notwithstanding all our efforts, and despite continuing to improve our ability to prosecute or deport, we are unfortunately left with a small group of suspected terrorists whom we cannot prosecute or deport. Control orders are intended to protect the public from the risk posed by such individuals irrespective of nationality, ethnicity or religion. The national security case for control orders therefore remains as strong as ever.
	For the past five years, control orders have proved a valuable and targeted tool in our fight against terrorism; effectively a last resort. They are preventive measures. Each order places a tailored set of obligations on an individual to help prevent or restrict him from engaging in terrorism-related activity. They are not imposed arbitrarily, nor are they imposed widely-there are currently only 11 control orders in force, and only 46 individuals have ever been subject to one.
	Noble Lords will be aware that the key development relating to control orders during the past year was the House of Lords 2009 judgment in AF & Others. In the light of the Strasbourg judgment in A & Others, the Law Lords concluded, reluctantly in a number of cases, that in order for control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. I should make it clear that they reached this conclusion in relation to the stringent control orders that were the subject of the particular appeal before them.
	It is clear that this judgment puts the Government in a difficult position. We have to balance the importance of protecting our public from the risk of terrorism posed by the individual against the risk of disclosing sensitive material which would harm national security. Some suggested that the judgment meant that the regime was no longer sustainable. Our view was that the control order regime remained viable, although we acknowledged the importance of keeping the situation under review as the courts applied the judgment to particular cases.
	So far, only two control orders have been revoked on Article 6 grounds without being replaced by new orders. Moreover, the High Court has upheld four control orders since the House of Lords judgment, following proceedings that were compliant with the Article 6 test laid down in AF & Others. The Government therefore remain of the view that the regime remains viable. The noble Lord, Lord Carlile of Berriew, reaches the same conclusion in his most recent independent report on control orders.
	The judgment should also finally put to bed the argument of some noble Lords that control orders are in some way an affront to human rights. That is clearly not the case. The protection of human rights is a key principle in our all our counterterrorism work, including the use of control orders. It has inaccurately been claimed that the judge in control order cases considers only procedure and not the merits of the case. In fact, a judge must agree that there is reasonable suspicion of involvement in terrorism-related activity, and that the order and its constituent obligations are necessary. The judge also specifically ensures that the order and the court proceedings in relation to it are compliant with the European Convention on Human Rights. We remain firmly of the view that the legislation and the order before us today are fully compliant with the European Convention.
	We consider the community impact of a control order both at the point of its imposition and during its lifespan. Alongside this is a wider programme of ongoing engagement with key opinion formers and community leaders which seeks to address, among other concerns, the impact of counterterrorism legislation, including the use of control orders.
	Apart from viability and fairness, the other major argument that people put forward against the use of control orders is that they do not work. The Government do not agree with this assertion. Of course we accept that control orders cannot entirely eliminate the risk of an individual's involvement in terrorism-related activity in every case. In most cases, however, control orders have restricted and disrupted that activity and, in some cases, they have successfully prevented involvement in terrorism-related activity.
	The reports of the noble Lord, Lord Carlile, support this conclusion. His 2009 report made clear his view that control orders were "largely effective". His 2010 report examines individual cases in greater detail. He concludes, for example, that three orders have,
	"substantially reduced the present danger",
	posed by those individuals and, in another case, that the control order is "an effective intervention". The recent report concluded that the legislation should be amended as soon as possible to provide the police with a power to search controlled individuals. Noble Lords will be aware that we tabled such an amendment to the 2005 Act during Commons Committee consideration of the Crime and Security Bill, which is currently before Parliament.
	I have made a couple of references to the latest annual report on control orders by the noble Lord, Lord Carlile. I draw noble Lords' attention to his conclusion that,
	"it is my view and advice that abandoning the control orders system entirely would have a damaging effect on national security. There is no better means of dealing with the serious and continuing risk posed by some individuals".
	This view is shared by the two statutory consultees-the Intelligence Services Commissioner and the director-general of the Security Service-who support the proposal to renew the legislation for a further year. I place on record the Government's thanks to the noble Lord, Lord Carlile, for his fifth annual report, which will no doubt inform today's debate. We will of course reply to that report formally in due course.
	We still face a serious threat from terrorism. We need to protect the public while ensuring that our fundamental rights and values are safeguarded. Control orders are by no means a complete or, indeed, perfect solution to the threat that we face, but they are an important, necessary and, I believe, proportionate part of our overall approach. I have absolutely no doubt that the risk to the public would increase were the Act not to be renewed. No Government could allow that to happen. I commend the order to the House.
	Amendment to the Motion
	 Moved by Baroness Hamwee
	Leave out from "that" to the end and insert "this House declines to approve the draft order laid before the House on 1 February".

Baroness Hamwee: My Lords, I thank the Minister for introducing the order. The temporary arrangements of 2005 lead us to find ourselves in what has become an annual ritual. I acknowledge that there are now some differences. We now have the concept of lighter-touch control orders, although they may not feel lighter-touch to those affected. I shall return to those. We also have the admirable report from the Joint Committee on Human Rights, which concludes that the current control order regime is "no longer sustainable". One thing that has not changed is the opposition of these Benches to control orders. I had expected to find that the Government's justification for control orders would in part be that it was too dangerous to disclose evidence even to the special advocates. However, in the debate in the Commons on Monday, the Minister talked of not having sufficient evidence. He said:
	"If there were sufficient evidence, we would prosecute. On occasion, sadly, we hold information but cannot obtain sufficient evidence to prosecute, although we know that the individuals concerned pose a potential threat. We have had to make a judgment, which the House may or may not support tonight, on whether that threat remains real and serious, and whether this power should be introduced".-[Official Report, Commons, 1/3/10; col. 723.]
	Making that judgment is the very thing that we cannot do.
	I have said before in this Chamber how difficult it is for those of us who are not part of the Executive to respond when essentially the Executive's message is, "If you knew what we know". Therefore, the Executive need to be very convincing indeed when they tell Parliament that they know rather than have evidence and when they ask Parliament to support a regime described by the Eminent Jurists Panel on terrorism, counterterrorism and human rights as potentially giving rise over the longer term to "a parallel legal system" and undermining the rule of law.
	Will the Minister explain the extent to which Ministers-it may be only the Home Secretary-personally consider the detail of each case? Of course they must take advice from the agencies, but do they themselves assess the facts? Have the Government ever considered sharing the basis for decisions with the Opposition on a Privy Council basis? I make it quite clear that I have no doubt at all about the Minister's integrity. He has himself made it clear that he very much dislikes control orders and, in his words, is very hard on people when they try to come up with one.
	There are those who wish to instigate their own full review of the regime. It would be helpful to hear from the Conservatives whether, if they were to find themselves in office later this year, such a review would start immediately and how long they anticipate it would take. As I understand it, they argue that they need to see the detail of the cases. I would ask whether it was not better to consider the principle before being carried along by the detail.
	Those who support control orders rely on the reports of the independent reviewer. Of course I do not suggest that he is not reliable, but his statutory role is to review the operation of Act and not, or not directly, the underlying policy. His role is also-perhaps this is the same point-essentially backward-looking. Interviewed following his most recent report, the noble Lord, Lord Carlile, acknowledged that, in concluding that the system remained necessary for a small number of cases, he had to hold his nose.
	The numbers are indeed small but the impact on controlees, their families and communities is great. The JCHR reports its extreme concern that,
	"the degree of control over the minutiae of controlees' daily lives, together with the length of time spent living under such restrictions, and their apparently indefinite duration, have combined to exact a heavy price on mental health".
	It comments on the "collateral impact" of the effect on female partners and children, including on their basic economic and social rights as well as their right to family life. It is very depressing to read that children cannot access the internet from home. We know how important technology is in today's education and we can imagine how other pupils may treat them. This is one of the conditions that may be imposed and seems to have been imposed frequently, if not invariably. Moreover, the legal process is so protracted that, for instance, when a controlee requested the variation of a condition to enable him to attend a college course, the course was finished before his modification request was resolved.
	I mentioned lighter-touch orders. It seems that relocation conditions are increasingly being used to require a controlled person to move. That has been described as a form of internal exile. British citizens who have grown up in a particular community have to uproot themselves and their families-their wives from jobs and their children from schools-and move to a new location. The JCHR reports evidence that this is having a disproportionate impact on the Muslim community, which the Government say that they are seeking to reassure.
	Relocation conditions puzzle me. The Minister in the Commons said that sometimes an individual is a threat because of his geographical location. He said:
	"If we move them from that geographical location, the threat they pose diminishes".-[Official Report, Commons, 1/3/10; col. 727.]
	Surely someone who is such a threat as to justify a control order would have the wit to overcome the hurdle of being moved from, say, Leeds to Chipping Campden.
	Our concerns are not just about the conditions but about the basic fairness of control orders. The special advocates have,
	"profound-and thus far insuperable-difficulties",
	in accessing independent expertise that would enable them to challenge the Security Service's assessments. Also, late disclosure or closed material seriously hampers them. That is a practical issue but, according to the JCHR, it creates the risk of serious miscarriages of justice.
	A special advocate cannot communicate with the controlled person or his legal representatives after he has received closed material. Clearly, this seriously affects the advocate's ability to represent the controlee's interests.
	The special advocates have asked for the rule to be relaxed to allow communication on matters of pure legal strategy and procedural administration, and to apply to the court for permission to ask questions of the controlee without giving notice to the Home Secretary. Those seem relatively mild requests. It is no wonder that they were "bemused" that the independent reviewer's sympathy led him to suggest improved training and closer co-operation, with no rule changes, when, as he himself said, the problem is "hardwired" into the rules.
	A lawyer receives "instructions", as they are termed, from his client, and every lawyer is used to urging on his clients the need to give instructions based on the facts of the matter, and to develop both the strategy and tactics of a case with his client and the other lawyers involved. It is no wonder that the special advocates are so frustrated. The committee concluded that,
	"the special advocate system has not proved capable of ensuring the substantial measure of procedural justice required".
	Following the AF case, the controlled person must be given sufficient information about the allegations against him to enable him to give effective instructions to the special advocate in relation to those allegations. What changes to the rules will the Government agree so that the judgment is fully implemented?
	The numbers of orders, as I said, are small; the Minister gave us the figures. Of those, seven have absconded. As one's natural assumption is that it is the most dangerous who abscond, that brings into question the very effectiveness of the orders. What does this cost? It has cost £13 million over three years-including more than £8 million in legal costs, getting on for £3 million in administrative costs, and £32 million to the Legal Services Commission for publicly funded representation. However, it does not include the costs of current cases-nor of compensation, which the Government must face in relation to cases thrown out following the AF judgement.
	The Government reject the alternative of releasing these large sums and spending them on surveillance instead. Nor do they apply the alternatives of: introducing intercept as evidence, or at any rate not yet; greater use of plea bargaining to encourage those on the periphery to testify against the leaders of plots; or prosecuting more. The conviction rate is notably high, which does suggest scope for more prosecutions. Interestingly, in their recent memorandum to the Home Affairs Committee, with its post-legislative assessment of the 2005 Act, although stating that in many cases only a control order is sufficient in light of the risk and that they are working to minimise costs, the Government said that,
	"viable alternatives to control orders that offered similar levels of assurance against risk, such as surveillance, would be considerably more expensive".
	I hope that the Minister can quantify that for us tonight.
	The change forced on the Government by the judiciary, so that a controlee must know the gist of the case against him, is welcome. However, as the evidence is still secret, it is unchallengeable. It does not satisfy our objections or negate our opposition. Rights to freedom and a fully fair trial and the presumption of innocence are fundamental principles. We fight terrorism to ensure physical safety and security but also to defend our values and principles. We oppose the control orders, we oppose this order, and I beg to move.

Lord Lloyd of Berwick: My Lords, I support the amendment of the noble Baroness, Lady Hamwee. In doing so, I should declare an interest since I was one of those who opposed the very idea of control orders when they were first introduced in 2005. I did so for two main reasons. First, I did not like the idea of the Home Secretary confining individuals on the advice of the Security Service and imposing on them restrictions that, at the severe end, are very severe, without the Home Secretary being satisfied on at least the civil standard of proof-the balance of probabilities-that they really are terrorists. Reasonable suspicion on the part of the Home Secretary is, in my view, much too low a threshold.
	No doubt it will be said-it always is said, and has been said-that the imposition of control orders is subject to the supervision of the court and that that makes all the difference. I do not agree. It is true that the Home Secretary must obtain the consent or permission of the courts before imposing a control order if there is time to do so. It is also true that the decision of the Home Secretary can be quashed at a later stage if it is obviously flawed. That is the test applied in judicial review. However, the decision itself is still the decision of the Home Secretary and not of the court; still less is it the decision of the jury.
	The powers given to the Home Secretary to restrict the freedom of individuals under the 2005 Act are very great. We are used to such powers being given to the Executive in time of war. It happened in 1939 and again at the beginning of the first Iraq war in 1991. It was my job at that time to visit Iraqi nationals detained in Pentonville on the advice of the security services. Having heard their stories, I was required to advise the Home Secretary of the day whether there were any grounds for detaining them. Many were thereupon released, so I have at least some experience of what these things are like at the receiving end.
	However, that was in wartime. The powers given to the Home Secretary under the 2005 Act have never, as far as I know, been given to the Executive in time of peace. They do not exist in France or Italy, as I know to my certain knowledge. Nor, as far as I know, do they exist in Spain, Germany, Canada or the United States, if one excludes Guantanamo Bay-a point made forcefully by Sir Kenneth Macdonald in his evidence to the Home Affairs Committee in the House of Commons. If all those countries can deal with the terrorist threat-and they have all suffered the terrorist scourge as we have-without resort to control orders, why are we the exception? Putting it the other way round: if control orders or anything like them are not necessary there, why are they said to be necessary here?
	My second objection to the principle of control orders lies in the field of procedural justice. An individual has a right to be heard in his own defence. Everyone has that right however dangerous they may seem to be. There is no problem where the evidence can be produced at the hearing. The difficulty arises when the evidence cannot be disclosed-the so-called closed material. What happens then? Under paragraph 7 of the schedule to the 2005 Act, the Attorney-General can appoint a special advocate to represent the suspect's interest. However, the special advocate is not like an ordinary barrister. Once he has seen the closed material, he can have no further communication with the suspect. That is the critical point.
	I was not the only person to doubt the justice of that arrangement. It would mean that, in many cases where the only evidence against the suspect was in the closed material, he would have no idea of the case against him. It would mean that, as regards his barrister, he would be shooting at a moving target in the dark. Others took that view as well as myself. In the debate in March 2004, on the renewal of the Anti-terrorism, Crime and Security Act 2001, the noble Baroness, Lady Hayman, said that she had made people laugh when she said that the special advocate procedure was like Kafka being played by the rules of cricket. She went on to say:
	"That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed-fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them".-[Official Report, 11/3/04; col. 1356.]
	That was a very wise and prescient observation, because that was the very point decided nine years later by nine Law Lords in the AF case. If the suspect does not know the gist of the case against him, he cannot have had a fair hearing. It was as simple as that.
	That brings me to the facts of that case, which are important and should be much more widely known than they are. AF was one of three appellants, AE, AF and AN. I take AF's case as being typical. He was served with a control order on 2 June 2006, which imposed an 18-hour curfew together with very severe restrictions. On 1 August, it was held by the Court of Appeal that the 18-hour curfew had the effect of depriving him of his liberty, which the Secretary of State of course had no power to do without derogation. So the Home Secretary appealed to the House of Lords and five Law Lords upheld the Court of Appeal. AF's control order was revoked, but it was replaced by other control orders with varying curfew hours of 12 to 16 hours. His last curfew order was imposed this time last year, but it was revoked by the Home Secretary on 27 August 2009 as a result of the decision in the AF case. Thus AF had been subject to successive control orders for a continuous period of three years and 15 days, of which 184 days were spent in prison because of minor breaches of the terms of his control order.
	That brings me to the final chapter in the case of AF, which was written by Mr Justice Silber. In his judgment on 18 January, he held that the original control order of 2 June 2006 and all subsequent control orders must be quashed, because AF had never had a fair hearing. He was never told of the case he had to meet-the very point that the noble Baroness, Lady Hayman, foresaw back in 2004. The Home Secretary described Mr Justice Silber's decision as disappointing-a word that he has used on several occasions to describe recent decisions of the courts. The effect of Mr Justice Silber's decision is that AF is now free to claim compensation. He has been told that, even if he succeeds, the compensation is likely to be modest. Even so, the Home Secretary has decided, true to form, to appeal to the Court of Appeal; no doubt, if he loses, he will appeal to the Supreme Court, as it now is. I shall not predict the outcome; instead, I shall simply comment on what, with a nice understatement, the noble Lord, Lord Carlile, calls the considerable court activity in 2009. There have been 15 separate hearings at High Court level or above. In 2008, it was rather more; there were 18 separate hearings at High Court level and above. That explains the figures that the noble Baroness has given, with £8 million out of £10 million having been spent on legal fees, which I work out at about £360,000 per individual for the 30 or so individuals during the years in question.
	I turn to AE, one of the other appellants, who was subjected to control orders for three years and seven months, again without ever having a fair hearing. Two others have been confined for more than two years and one for as much as five years; he is in the middle of his fifth year. I do not believe that it was ever anticipated, when we passed the 2005 Act, that control orders would be used in that way. They were intended as a stop-gap to cover a particular emergency resulting from the decision of the House of Lords in December 2004 in A's case-a decision that clearly took the Government by surprise. That was the reason why we in this House insisted on a sunset clause after an all-night sitting. Yet now, after five years, control orders have become part of the criminal justice landscape. We should never have allowed that to happen.
	I have so far spoken only about curfew as part of the control orders and their duration. The restrictions imposed on AF go far wider than that and, again, should be far more widely known than I suspect they are. I quote the noble and learned Lord, Lord Bingham, about AF:
	"He was required to wear an electronic tag at all times. He was restricted during non-curfew hours to an area of about 9 square miles bounded by a number of identified main roads ... His flat was liable to be searched by the police at any time. During curfew hours he was not allowed to permit any person to enter his flat except his father, official or professional visitors, children aged 10 or under or persons agreed by the Home Office in advance ... He was only permitted to attend one specified mosque. He was not permitted to have any communications equipment of any kind ... He had three times been refused permission to visit his mother. His sister and her family were unwilling to visit because of the traumatic experience of one child when AF was first arrested. Friends were unwilling to visit. He only had one Libyan or Arabic-speaking friend in the area he was allowed to frequent".
	All those restrictions are made infinitely worse when the so-called relocation procedure is followed, when he will be relocated to an area in which he knows simply nobody. I understand that of the 11 controlees currently subject to control orders, eight have been relocated in that way. I suggest that relocation is absolutely unacceptable.
	Lastly, I return to a point that I have already mentioned. AF's control order was revoked in August 2009. Since then, he has been a free man. Yet a year ago on 5 March the noble Lord, Lord West, described him as "highly dangerous". He was one of 15 highly dangerous men who, if released the following Tuesday, would put the nation and its people at risk. That was the advice which the noble Lord had received from the Security Service and the police, and which he had accepted. Yet AF, that highly dangerous man, is now free, without the dire consequences which were then predicted. What is the explanation for that? The answer can be only this: the Home Office has indeed found some other means of dealing with him. If other such means exist now, they must have existed in March 2009 when AF's control order was renewed. In which case, it must follow that the Home Secretary had no power to renew the control order in March 2009, because it was not necessary to do so. He could have used means then-whatever they may have been-to deal with this highly dangerous man, such as those which the Home Secretary is using now.
	If using a control order was not necessary in the case of AF, why should we accept that it is necessary in the case of the other 11 individuals who are subject to control orders? The answer is, of course, that it is not necessary. We know now that other means can be found to contain the risk posed by these few remaining wretched individuals. If that is so, it is high time that we brought control orders to an end. They are, and always have been, a blot on our jurisprudence. They are universally condemned by Justice, Liberty, the Home Affairs Committee in the House of Commons and the Joint Committee on Human Rights. The noble Lord never referred to their reports in his introduction.
	If the noble Baroness, Lady Hamwee, takes this matter to a vote, I would be more than happy to support her.

Baroness Neville-Jones: My Lords, we are considering an order which goes to the fundamentals of a free society which seeks to live by the rule of law. I doubt that there is any Member of this House for whom the existence of control orders or the fact that we have to have them is anything but a matter of regret.
	The issue is whether they are still judged to be effective and necessary in practice, even if highly undesirable in principle. We have heard very strong sentiments expressed to the effect that control orders are not necessary or effective. I must say that I wish I could wholly share that confidence. Nevertheless, let me say straightaway that I share the aim of other noble Lords, including those who have spoken-the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hamwee-of finding a way forward which would permit us to dispense with control orders. The question is how we do that. However, their removal must not at the same time aggravate the terrorist threat or undermine the security of the British people.
	Several issues are involved: the security situation, the possibility of reducing or eliminating the need for control orders by taking other measures, re-examining the prospects for successful prosecution and reforming the system itself. All of these aspects have been mentioned by previous speakers and I wish to refer to them briefly. I begin with the security situation.
	The noble and learned Lord, Lord Lloyd, said that we are not at war. Of course, he is right; we are not at war in a traditional sense. We do, however, have a severe security threat which I take seriously. But part of our problem is that the Government have failed to update this House on the current general security situation, even though, as the Minister himself said, the terrorist threat was raised again to "severe" in January. But we have not had a proper report to Parliament to either explain or justify that. In June last year, I called on the Government to issue a report on the current threat and security situation in time for discussion on renewed orders for counterterrorism measures. It is not good enough to expect the renewal on the basis of keeping people in the dark and preventing us giving informed consent.
	I am well aware of the limits of what may be said in public, but the Government make no attempt to get anywhere near those limits. That is very regrettable, because we ought to be having a discussion against a much more informed general background, and there is also the question of the threat posed by the individual controlees. It is unlikely that all controlees will be threats for all time; indeed, some of the orders have been lifted. The noble Lord, Lord Carlile, has reported on individuals currently subject to control orders, but his function, important as it is, does not relieve the Government of reporting on their own account. It is most unsatisfactory that they do not do that.
	However, having said all that, precisely because, in the view of the statutory reviewer, the control order regime remains necessary in a limited number of cases and is not capable of being replaced by other measures currently available, I do not feel able to support the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Lloyd, in their amendments to the Motion, and I am obliged to take seriously the judgment of an informed person-in other words, the noble Lord, Lord Carlile. These Benches will therefore abstain on the amendments before the House.
	It follows from what I have said that on these Benches we want to see at least significant reform of the arrangements surrounding control orders and, at best, the replacement of the regime itself. If we are elected to office that will be an early aim. The noble Baroness, Lady Hamwee, asked if we were to be elected and conduct such a review, how long it would take and with what aim in mind. I can assure her that it will be with the aim, if we possibly can, of eliminating the control order regime. It will be an early piece of work, we will not delay on the matter, and it will be seriously conducted. We will aim to come back to the House with what we hope will be a justified conclusion at an early date.
	It has been well said that there is no silver bullet-no single thing that would enable us to do away with this regime. But there is a range of measures that should be investigated with a view to making control orders unnecessary. I shall list them briefly, because they are well known. First, there is the possibility of deportations. We know that they are difficult but they should be pursued with vigour. There is the question of using intercept material as evidence. We have been cautioned as to its likely limited value. But that is not the same as having no value, and we know that non-British-sourced intercept evidence has been useful in securing prosecutions. Given that the public interest in securing successful prosecutions is very great, the Government are right to revisit the conditions laid down in the Chilcot report. I very much hope that the further work being done will lead to an outcome which enables that material to be used in court. I know that a report has been promised before the Easter Recess. If it is necessary to do more work in order to get the right outcome, I would much prefer that to being told that publishing a report by Easter is not possible.
	I also have some question marks on the way that decisions are currently made about whether or not to prosecute individuals in control order cases. This has a bearing on whether control orders remain in place. These decisions are taken by a chief officer of police, and the CPS has only an advisory role to the extent that the police consider it appropriate to consult. The noble Lord, Lord Carlile, has criticised this-indeed he might-as well as the lack of evidence and reasons given for discounting prosecution or discontinuing investigations, as contained in letters sent by the police when they report to the Home Secretary on what they have done. This year, the noble Lord, Lord Carlile, said in his report that the quality of the letters "continued to improve". When I was at school, that was another way of saying, "Could do better".
	I am not happy that the last word lies with those whose priority will be security. It is right that they should be involved, but with the much heftier weight of setting another public interest in the balance alongside this-the rule of law. The Director of Public Prosecutions has said that there should be,
	"a presumption in favour of prosecution".
	I agree.
	All this is more relevant given the raft of new terrorist offences that the Government have created, as mentioned by the Minister. With all these new offences, can we not get more prosecutions? It would be helpful for the Minister to say whether the individuals presently subjected to control orders could be prosecuted in the light of these extensions. I will cite the report of the statutory reviewer, the noble Lord, Lord Carlisle. He referred to the activities of, for example, control orders 11 and 12. These individuals have been trained abroad in terrorist activity, have been involved in considerable terrorist planning and facilitation in the UK, and continue to attempt to remain active despite the control orders. Another two persons, CO4 and CO5, are associated with extremist groups. Their activities are continuing, according to the statutory reviewer. Do the activities not now enable, and indeed warrant, prosecution? Has there been any review of this possibility; and if so, with what outcome? I will ask the reverse question: if there has been no review, why not?
	In addition to those steps, which I hope would lead us down the road of being able to secure more prosecutions, others have suggested-this has been touched on by other speakers-that control orders could be replaced with surveillance. It has been said, and I am prepared to believe it, that surveillance is very expensive. However, this should be set against other costs, including ones that have been mentioned by the noble and learned Lord, Lord Lloyd, who talked about the costs of going to appeal all the time. Have the Government made a comparison of relative costs when everything is taken into account? If we are seriously to try to find alternatives to control orders, we must look at the overall cost of where we are now and compare it with going down another road, which may be that of surveillance.
	The noble Lord, Lord Carlisle, has come up with a different recommendation in relation to certain controlees. He says:
	"Control orders are ... no longer suitable for cases where the main objective is to prevent travel abroad. In such cases, after further legislation, there should be available a Travel Restriction Order, with a limited range of obligations".
	Will the Minister say whether the Government agree with this, and whether legislation to this effect will be introduced? This would be less onerous, and the suggestion has come from the statutory reviewer. I am not in a position to assert that measures of the kind that I have outlined will allow us to remove every control order; but they would permit the Government to meet their obligation to reduce reliance on the system.
	That brings me to the last set of issues that I will tackle. If the control order regime is to continue even in limited numbers, it is clear that it cannot be on the basis on which it is now being implemented. The Joint Committee on Human Rights has said that the system,
	"cannot be operated fairly without fundamental reforms which have so far been resisted".
	Reform of the system need not await the advent of a new Government: it is something that the Government are already charged by the courts with doing, and which they appear to be doing minimally and reluctantly. I say that reluctantly, but they are acting minimally and reluctantly.
	The judgment of the Law Lords in the case of AF required the individual subject to a control order to be given,
	"sufficient information about the allegations against him to enable him to give effective instructions"
	to counsel. In other words, there was an irreducible minimum that had to be disclosed. The question is-and I hope that the Minister will be willing to go into this-how the Government have interpreted and implemented this judgment. This is key to whether there is a serious attempt to reduce the onerous nature of control orders.
	In recent evidence to the Joint Committee on Human Rights, no lesser persons than the special advocates said that the Home Office took a minimalist view of the requirements imposed by the judgment. It is interesting that this should come from that source. They took the view that it was primarily up to them, and not the Secretary of State, to make the running when reviewing the evidence base and making proposals for disclosure. One special advocate went so far as to say that this behaviour was not in keeping with the spirit of the judgment. It would be helpful to have the Minister's comments on this. The Joint Committee on Human Rights shares this view and concluded in a recent report that,
	"the impact of the ... decision"-
	the decision of the Law Lords-
	"on improving fairness in practice may have been limited by the Government's passive and minimalist approach to compliance".
	The Government say that, following the judgment, they carried out a review of all the control order cases to see whether further disclosure was or would be required, and whether it was possible to make the disclosure. The Home Office's post-legislative assessment refers to the Secretary of State having made "sufficient disclosure". Will the Minister say how "sufficient disclosure" is defined?
	Apart from the internal review of control order cases, will the Minister say whether the outcomes have in all cases been tested in court? Perhaps he will also clarify-it may be helpful to say that he can do this in writing-how the Government have interpreted the judgment, and how they have gone about implementing it. Obviously, that is a detailed matter.
	Closely related to the point about disclosure is the context of the special advocate system. There is a prohibition on the ability of special advocates-this was mentioned by the noble and learned Lord, Lord Lloyd-once they have seen closed material, to communicate it to the defendant or to open representatives, at least without the Government knowing what has been said between them. One has therefore to ask: can an individual effectively instruct his legal team? Will the Minister also comment on complaints made by the special advocates about the late disclosure to them of documents? Even within the limits of the system, this is surely unacceptable. Will the Government be willing to review how the special advocate system operates? A number of other speakers also feel that it is unsatisfactory.
	As I mentioned, it is well known that the Conservative Party wants to review the consolidation of all terrorism legislation, and will do so if it comes to office. The control order system will form a significant part of that review, and we will look at the various areas that I have covered. It will be a task. We cannot proceed only from the principle, with which we agree, that this is obnoxious: we also have to look at the facts of the situation. However, our aim will be to reduce the reliance on control orders and, consistent with the security situation, to replace them.
	Were we to conclude that such a system were still needed, as the noble Lord, Lord Carlile, put it,
	"for a small number of cases where robust information is available to the fact that the suspected individual presents a considerable risk to national security, but and conventional prosecution is not realistic",
	we still believe that the system would need reform. We are not content with it, even if it needs to continue.
	So today we on these Benches will abstain, but I make it clear that the Government have left the House in an unsatisfactory position. They have not done enough to introduce other measures that would allow them to replace control orders, or greatly to reduce their scope. They have not reformed the system to make it consistent with the rule of law. At the same time, the Government have not reported on the security situation and the risk posed by the individuals in question, thus not allowing us to judge whether the control orders can be removed consistent with the security situation and the duty of Government to protect the public. In the future, we believe that the Government must make a good deal more effort to enable the House to make validly based decisions.

Lord Goodhart: My Lords, I should declare an interest as a former chairman of Justice, an organisation which has provided briefing in support of these amendments. I was on the Front Bench of the Liberal Democrat party in 2005 when we debated what was then the Prevention of Terrorism Bill. Five years later, I want to add a few words from the Back Bench. In 2005, my party was willing to support control orders in principle, but on conditions which were not in fact satisfied and never have been. The two most important of those conditions were, first, that control orders should be made by judges and not by the Home Secretary; and, secondly, that the standard of proof for control orders should be proof of involvement in terrorist activities on the balance of probabilities, and not merely on the basis of reasonable grounds for suspicion. Neither condition was accepted by the Government, but I believe that both should have been because they would have much improved the Bill. It is plainly wrong, for example, that control orders can be made against a person whose activities do not satisfy the test of the balance of probabilities.
	As time has gone on, the defects of control orders have become more and more obvious. The decision in the AF case has ruled that control orders are in breach of the right to a fair trial if the subject is not told the substance of the case against him. This will and does make control orders a patchwork, where sometimes they are properly made and sometimes not, whatever the factual basis behind them. There is also little, if any, reason to believe that control orders have been effective in preventing or restricting terrorist activities. By contrast, of course, there is a risk that control orders may increase support for terrorists from terrorist groups or their allies.
	I believe that the line we took in 2005, saying that we approved in principle, is no longer viable. We should now oppose the continuance of control orders altogether. There is one issue which has been largely, or in fact I think totally, ignored in the debate so far, and that is that the 2005 Act divided control orders into two classes: non-derogating control orders, which are what we have, and derogating control orders, which so far we have not had. A derogating control order is an order made after the Government have exercised their power to derogate from the European Convention on Human Rights, as provided for by Article 15 of the convention. The circumstances in which that power can be exercised are very limited, and no such order has been made. But the exercise of the right to derogation, if it was exercised, would give power to override the right to liberty under Article 5. It can be said on the one hand that something of that kind could be useful in an emergency, but on the other its existence is a matter for concern. In fact, in the case of serious emergencies, the Prevention of Terrorism Act is unnecessary because a similar action could be taken under the Civil Contingencies Act 2004.
	The Joint Committee on Human Rights concluded in its recent report that:
	"We have reached the clear view that the system of control orders is no longer sustainable".
	I respectfully agree. I will support my noble friend's amendment, and if it is defeated, I will support the amendment tabled by the noble and learned Lord, Lord Lloyd.

The Earl of Onslow: My Lords, for my recent birthday, I was given by a very clever brother-in-law of mine a book by the noble and learned Lord, Lord Bingham. In it he talks about the rule of law and mentions the Court of Star Chamber, and what I think were called the prerogative courts. This system of control orders reminds me irresistibly of the methods used by both Henry VIII and Charles I, which one would think by now, thank goodness, have mostly been consigned to history.
	It is interesting to note that when Charles Clarke introduced the Bill in February 2005, he said it was for,
	"those dangerous individuals who we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in this country".
	The noble Lord, Lord West, has repeated that statement today when asking for the order to be renewed. How does it mesh with the fact that when two of the gentlemen under control orders absconded, a junior Home Office Minister said that he,
	"did not believe that the public was at risk from the escaped men"?
	Either they are dangerous or they are not dangerous. It appears that they were dangerous before they escaped, but they were not dangerous after they escaped. The noble Lord, Lord Carlile, agreed that the disappearances,
	"present little direct risk to public safety in the UK at the present time".
	We cannot lock up people who represent no danger, or rather if they only represent a danger when they are locked up and not when they have escaped.
	I turn now to what the House of Lords said in the AF case, and I remind your Lordships that nine judges were sitting. The noble and learned Lord, Lord Phillips, said recently in the Supreme Court that:
	"A trial procedure could never be considered fair if a party to it is kept in ignorance of the case against him".
	The nine Law Lords held unanimously that the Government's failure to disclose sufficient details of their case against a person subject to control orders breached their right to a fair trial under Article 6 of the ECHR. They also said that it was against common law and the European Convention on Human Rights.
	We should not be behaving like this. It is a disgrace, as the country that invented the rule of law-that invented Magna Carta. Let us remember that Magna Carta was not new law; it is what they persuaded the King to say was the ancient law of England. That is what I find so moving about this country: that we go in for the rule of law. Unfortunately, for the past 13 years or so, there have been some rather shoddy little bits of legislation-not only this one, but others-which have taken away from that great standard.
	The noble and learned Lord, Lord Hope of Craighead, the deputy president, said:
	"The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him".
	I turn to the JCHR report; I have the privilege to be on the committee. The report was solidly unanimous in its acceptance. We were all shocked by some of the witness statements that we heard. I will start with where we considered what the noble and learned Lord, Lord Lloyd, talked about, which can best be described as "internal exile". I think that it was the noble Baroness, Lady Kennedy, who used that expression when representing someone, and did so quite deliberately. That is what Tsar Nicolas I did to the Decembrists: they were sent to Siberia for 30 years. I accept that if you are sent from Bradford to Chipping Sodbury, Chipping Sodbury is not exactly a salt mine to the north of the Arctic Circle, but it is the same principle, and a principle that is abhorrent to any of us who care about the liberties of the subject, as I do. The damage to children and wives and the unfairness of the whole principle has been referred to.
	I turn to special advocates. The rules have been changed a little, but special advocates continue to have no access in practice to evidence or expertise that will enable challenge to the expert assessment of the security services. Someone cannot challenge the evidence that is against them properly and, above all, the special advocates have no means of gainsaying the Government's assessment that disclosure would cause harm to the public interest. Late disclosure also means that they cannot address the case properly. I think that it was said that someone applied for release to attend a course, but by the time that the okay came through, the course had finished.
	It gets worse and worse. We state in the report:
	"By seriously hampering special advocates in their performance of the role they are intended to perform, it creates the risk of serious miscarriages of justice. The inability of special advocates to communicate with the controlee after seeing the closed material, identified as a source of unfairness by the Constitutional Affairs Committee in 2005, remains unchanged, notwithstanding the clear evidence that it seriously affects the special advocates' ability".
	The committee considered whether the whole order regime could be made to operate in a way compatible. We said that we had maintained an open mind until now, but that:
	"Our assessment now, in the light of five years' experience of the operation of the system, is that the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted".
	I could go on citing chunks of the report and trying to précis it, but I think that most of your Lordships have read it. It is an excellent report; it is one that we all felt strongly about; and it concludes by stating:
	"For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable".
	The cash has been talked about-the cost of lawyers. To end on a marginally flippant note, I would much rather that the cash went to Plod than to my learned friends, and that there was surveillance rather than keeping lawyers in good claret or villas in the south of France. If there is a vote, I will disobey my Front Bench and vote with the noble Baroness, Lady Hamwee.

Lord Scott of Foscote: My Lords, I declare an interest as a member of the Appellate Committee that heard the case at the end of 2004 of those who were subject to indefinite detention in Belmarsh. The conclusion was that the Act-I think it was the 2001 Act-that provided for that indefinite detention was unlawful in that it was contrary to the guarantees given by Article 5 of the convention on the right to liberty, unless that had been detracted from by an appropriate court process, which had not been the case. That decision led to the 2005 Act, under which the control order regime was put in place as a substitute for the Belmarsh indefinite detention regime. That came under challenge and led eventually to the decision of the Appellate Committee in AF. I again declare an interest as a member of that committee as well.
	The Belmarsh case had been concerned with Article 5 on deprivation of liberty; the AF case was concerned with Article 6 on absence of a fair trial. Those who had been subjected to the control orders, who had appealed, had had their rights and obligations in the society in which they lived seriously prejudiced; that was the purpose of the control orders. That had been done, as the Appellate Committee found, without there having been a fair trial because it had not been possible for the lawyers representing the controlees to be informed of the gist of the case against their clients. As they could not be informed of the gist of the case against their clients, they could not resist the thrust of the allegations made against them. How could that be a fair trial? The answer was that it could not, and that was the decision.
	That remains the position in relation to control orders. Unless the gist of the case against the person who is sought to be or has been made subject to the control order can be disclosed, he cannot be given a fair trial because he cannot be given a proper opportunity of showing that the case against him is false or unsound. The balance of probabilities, to which the noble Lord, Lord Goodhart, referred, could not be satisfied and reasonable suspicion should not be enough.
	The legal basis for legislating inconsistently with the convention is made quite clear by the Human Rights Act 1998. It is open to Parliament to legislate inconsistently with the convention; Parliament may do that. However, the courts are instructed by the Act to try, so far as is possible, to read down legislation which appears to be inconsistent with convention rights so as to render it consistent. If the courts can do that, they will do that. They did it in the case of MB when the control order legislation was read down, as your Lordships will remember. If that cannot be done, the legislation-inconsistent though it be with convention rights-is valid and effective and must be, and will be, implemented by the courts. Parliament can make clear its intention that the restrictions, whatever they may be, made possible by the legislation are intended to be effective notwithstanding that they may be inconsistent with convention rights. If Parliament makes that clear, the courts must accept it and apply the legislation.
	However, a Government who introduce legislation of that character and obtain its passage through Parliament are in breach of their obligations under the convention to abide by the convention. The convention provides a let-out in Article 15, which states that in a time of national emergency-I cannot quote the exact words, but this is the gist of it-the state in question may take such steps as are necessary to deal with the national emergency. That argument was run in the Belmarsh case. It did not succeed because the Appellate Committee was not satisfied that the indefinite detention which was provided for by the relevant Act was necessary; alternatives could have been, but had not been, considered and tried. But there it is: that is the convention outlet.
	In the 1998 Act the outlet is even clearer. Section 14 makes it clear that Parliament can legislate inconsistently with the Act. The Minister who promotes the legislation must then make a declaration of incompatibility. The position is clear. The courts will then give effect to that legislation on that footing. The obligation of public authorities not to act unlawfully by acting in breach of convention rights does not apply to Parliament. That, too, is made expressly clear by the Act.
	The position, therefore, is that if the Government really think it is necessary-using that word, "strictly"-to curtail the right to a fair trial of those of whom there is reasonable suspicion of being engaged in or sympathetic to terrorist activities, they can legislate accordingly and make a declaration of incompatibility. However, if they do that they must accept the opprobrium that would undoubtedly be cast on them from some quarters for having legislated inconsistently with the convention. If the Government do not do that-and they have not, which is understandable-they must accept that they cannot simply introduce legislation and expect the courts to enforce it if there is no provision for a fair trial. That is the position here. If at least the gist of the case against the proposed controlee cannot be given, that controlee will not have been afforded a fair trial.
	Paragraph 62 of the report of the Joint Committee on Human Rights refers to the approach of the prosecuting authorities-and therefore, I guess, the Government-to the disclosure of information to the special advocates. This, according to paragraph 62, is dealt with on a class basis. It is dealt with on the footing that if the information falls into a particular class it will, ipso facto, not be disclosed. That was a line that used to be taken in relation to public interest immunity certificates in ordinary civil and criminal litigation. If one party in a civil case, or the prosecuting authority in a criminal case, had information in their possession which the other party-or defendant as the case might be-thought might assist his case, disclosure would be sought. If the information fell within a particular class, regardless of its content, disclosure would be refused. The consequence of that was that in several cases appropriate information that might have been afforded to the defence and changed the result of the case was not disclosed.
	That changed in the late-1990s and early-2000s. All these claims for immunity from disclosure had to be dealt with on the basis of contents. If the content could be disclosed without damaging national interests, it had to be disclosed, whatever class it fell into. Now one finds, in paragraph 62 of the Joint Committee report, that in these control order cases the disclosure of information is being refused on the grounds that the information falls into a class that requires disclosure to be refused. That will not do. It is, I suggest, an indication that a great deal more can be disclosed than has been the practice in the past. The Joint Committee makes that clear, and it requires some thought to be given to whether instruction should be given for the disclosure obligation to be undertaken on the basis of content, not of class. Unless that is done, these trials will continue to be unfair; they will continue to be a breach of the Article 6 entitlement to a fair hearing; and there will continue to be reversals of these control orders in the courts. Subject to assurances on such points from the Minister, I would support the amendment of the noble Baroness, Lady Hamwee, and that of my noble and learned friend Lord Lloyd.

Lord West of Spithead: My Lords, first, I thank all noble Lords for their contributions to this debate. The noble Baroness, Lady Hamwee, was absolutely right: when I came into post some two and a half years ago I did not like control orders at all, for some of the reasons that noble Lords have given. I was very concerned about them. I wanted to be absolutely sure that they were needed because they were not an attractive option to me. I sent the Security Service, SO15 and the Office for Security and Counter-Terrorism away to look at this in great detail to make me believe that they were right. I thought that they would not be able to prove it. They came back to me, and it took them some months. It was quite clear at the end of that that the costs-not just money costs, but resource costs-were going to be dramatically higher to give the same surety of security. Indeed, it was probably almost impossible to give that surety of security in a number of cases. Therefore, I reluctantly accepted that these orders should continue.
	What do I mean by the surety and the ability to ensure that these people could not be engaged in terrorism? Reference has been made to people being moved from where they live. Sometimes it is difficult to ensure that someone living in a very close housing estate in Hackney-I know those places well as I live in Hackney-has no connection or connectivity with people who we know are involved with terrorism, either through deep intelligence or because they have been prosecuted, have been inside, come out again and then we have seen them re-engage.
	I think that the noble Earl, Lord Onslow, mentioned people being sent to Siberia. Certainly, we have preferred not to leave some people in Bethnal Green, Hackney or somewhere like that and we have sent them to Gloucestershire. That is not quite as bad as Siberia, although I know that Gloucestershire can be quite bad sometimes. It means that one is able to monitor them a lot more carefully. What are we trying to do with these people? We are trying to make our nation safer. We do not pluck these 11 people from the top of a bus somewhere; we have reason to have these 11 people there. We believe that they are involved in terrorism. Those things are sometimes very difficult to disclose.
	The noble Baroness asked who looked at the detail of each of these cases. I certainly sit down and look at the proposal for a control order. Light touch was mentioned. I do not particularly like some of the light-touch measures because I believe that the only people who should be subject to control orders are those who pose a real and serious danger. I sit and go through the orders. There is normally a supporting document much bigger than the one before me of Security Service intelligence, SIS and other intelligence, which I go through. It takes a long time and I put a lot of effort into doing that. I then forward it to the Home Secretary, who I am sure puts just as much effort into it. It is an exhaustive look. I had a full head of dark hair and no bags under my eyes when I started, but these things take a lot of effort, so we do take them extremely seriously. As I say, these cases are reviewed properly. It is not a question purely of money costs but also of resource capability. Although we have doubled the size of the Security Service and increased the size of SO15 by 70 per cent, we are still quite tight on resources. There are a lot of plots and concerns, and to cover them properly is extremely difficult. That is an important issue.
	As I say, we do not pluck these 11 people off the top of a bus. We do not say, "Let us pick those up and have a look at them". These are people about whom we have serious concerns and an awful lot of intelligence. But as we know, intelligence is not evidence. It is not fair to say that we then just apply things to them. A judge has to agree that there is reasonable suspicion of involvement in terrorism-related activity, and that the order and its constituent obligations are necessary. A judge looks at this, so as well as me looking at it and the Home Secretary looking at it, a judge looks at all this detail as well.
	A number of speakers mentioned people absconding. I think that the noble Earl, Lord Onslow, mentioned someone who had absconded and said that someone had made a statement some time ago about him no longer being a threat. I do not know about that. All I would say is that since I came into post not a single person has absconded.

The Earl of Onslow: It was in fact a Home Office Minister who made that statement. That is why it is so bizarre that they were dangerous while locked up but not dangerous when they had absconded.

Lord West of Spithead: My Lords, as I said, I am not aware of that. I would only say that not a single person has absconded since I have been in my post. I suppose one could argue that, once they have left the country, they are not such a direct threat to people in this country, but I would suggest that they are a threat globally and that they could be a threat to our forces in various countries.
	The noble Baroness, Lady Hamwee, also asked-

Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord for giving way. Could he not deal with the noble Earl's point about the seven who absconded, admittedly before the noble Lord's time, and the point that I made in relation to AF? A year ago, they were regarded as highly dangerous; today, AF is at large. Is the risk being contained or not? If it is, why can it not be contained in relation to the other 11 controlees?

Lord West of Spithead: My Lords, I am afraid that I cannot give an answer on the seven who absconded before my time in post. I do not know what statement was made on that. I do not know which country they went to or what happened to them. I do not know the details. They may well be in prison somewhere else; I just do not know.
	As regards AF, we have never accepted that a control order is not necessary; we still think that it is. I do not think that anyone here would expect me to go into the detail of what we are doing to make sure that we are secure.

Noble Lords: Oh!

Lord West of Spithead: I do not think that I should go into the detail of what we are doing about this. I would not go into the detail of the approximately 2,000 people whom we are monitoring in certain ways. They are not as dangerous as the ones under control orders but we still believe that they need to be monitored, watched and checked in many ways. I would not dream of mentioning that on the Floor of the House and I do not believe that I should. It would put certain things at risk and would mean that those people would be able to get round the surveillance. Therefore, as I said, I do not accept that AF should not have been under a control order, and we have to be very careful about what we say in covering it. If all 11 people under control orders were out, that would take a lot of resource and I do not believe that we would be as safe as we are. That is why I am concerned.
	The noble Baroness, Lady Hamwee, asked what changes to the rules the Government will make to ensure that the House of Lords judgment in the case of AF and Others is fully implemented. We do not believe that any changes are necessary and the House of Lords did not suggest that any rule changes are needed. This includes in relation to the special advocate talking to controlees after the service of closed material. The courts already ensure that hearings comply with the right to a fair trial.
	The noble Baroness also talked about the impact of some of these measures on a controlled individual and his family. It is true that some of these measures are very severe. In my opening speech I touched on the fact that we take the impact on physical and mental health very seriously. I also touched on how we deal with local communities and how we review the situation constantly to make sure that controlees are all right. However, these are people whom we assess to be highly dangerous for our nation, and it is right that we put in place measures to try to ensure that we are safe. As I said, it is not something that one wants to do but it is right that we do it. However, we look very carefully at these very specific issues to make sure that these people are looked after.
	I know that the noble and learned Lord, Lord Lloyd, accepts that our preferred approach in dealing with terrorists is prosecution. All of us here would like to carry out a full prosecution. However, it is not always easy to achieve that because intelligence and evidence are very different. I disagree with his suggestion that the control order regime is unjust. Control orders are subject to numerous checks and balances-importantly, including judicial oversight in every case. That judicial oversight explicitly involves ensuring that control orders and control order proceedings are compliant with the European Convention on Human Rights, including the right to a fair trial, which is now considered in the light of AF and Others. Moreover, the High Court has upheld four control orders since the House of Lords judgment following proceedings that were compliant with Article 6 tests laid down in AF and Others.
	The noble and learned Lord, Lord Lloyd, said that the regime is ineffective. I dispute that; I do not believe that it is. I would not have left it in place if it were ineffective. I agree that it is not perfect but it is largely effective.
	The noble and learned Lord also referred to a number of countries in Europe and perhaps elsewhere that are shining lights as regards not keeping people locked up. I can only say that when I speak to my opposite numbers in some of these countries, I am constantly amazed at how they seem able to bang people up for amazingly long times without what I would call a normal trial. That might be because of their different systems but we are by no means bad boys in that area.
	On the length of sentences, we have national security concerns about imposing arbitrary end-date control orders, which the noble and learned Lord, Lord Lloyd, mentioned, regardless of the risk posed by an individual. Our position is that orders should be imposed for as short a time as possible commensurate with the risk that they pose. I know that the noble and learned Lord may disagree but the High Court has supported our view. The statutory test in control order legislation already ensures that the Government can lawfully renew a control order only if it is necessary to do so, and that any decision by the Secretary of State can be appealed by the controlled person. The High Court must decide whether the test has been met. I have touched on AF, the other point raised by the noble and learned Lord.
	The noble Baroness, Lady Neville-Jones, talked about effectiveness. I hope that I have shown that control orders are effective. Our assessment is that they are. The noble Lord, Lord Carlile, assesses them as effective, as does the head of the security service. We have seen the results in terms of stopping individuals being involved in terrorist activity, contacting people with whom they work and doing certain things on whichever system they are using. The internet was mentioned, which is used for radicalisation and other things. That is why there are restrictions. I agree that it may not be nice for the youngster in the family but our aim is to protect the public. These people are not little innocents pulled off a bus; they are people on whom we have considerable intelligence as being a risk to our population.
	The noble Baroness, Lady Neville-Jones talked about security and wanted a brief about that. I do not think that we can keep on updating. In the CONTEST 2 strategy last year we gave a clear exposition of the threat and we are now looking at it a year on. We will be saying where we are on that in the near future.
	The threat level is not a ministerial decision for good reasons. It is a decision for the Joint Terrorism Analysis Centre and it would be wrong to go through the reasoning on why that is being raised. I note and was pleased to hear that the noble Baroness is willing to listen to an informed person. I thought for one glorious moment that it would be me, but it was the noble Lord, Lord Carlile. Never mind.
	I was asked: if we can prosecute, do we? The answer is yes. We look at and review control order cases. If we can prosecute them, that is what we want to do. The travel restriction order is an interesting point. We are not convinced that it makes a real practical difference but we will be thinking about it and considering whether it is worth going further with it.
	The noble Lord, Lord Goodhart, referred to judges. They are fully involved in control orders, as I hope I have already covered. There is no doubt that control orders have prevented terrorist activity, and the noble Lord, Lord Carlile, agrees. We have seen their impact. The reason why control orders are broken is because the people want to engage and make contact. We see them talking to people and using systems that they should not-we have a certain ability to know what is going on. Control orders have a major impact.
	The noble Earl, Lord Onslow, asked about people under control orders and the risk that they present. They present a serious risk. We absolutely believe in the rule of law and I do not accept that this Government have withdrawn from that. There have been great changes as a result of 9/11 and the risk of global international terrorism of a type that we have never seen before. Groups of people do not mind losing their own lives. All they want is to cause mass civilian casualties. In certain cases we have not got everything right and inevitably we have had to make changes. We have always tried to ensure the rule of law and our belief in those standards, as everyone in this House does.
	We always read JCHR reports very carefully because they are very important. We do not agree with all the assertions made in the JCHR report. The noble and learned Lord, Lord Scott of Foscote, touched on this. We believe that control order legislation is fully compatible with the ECHR. Many of the amendments to the regime proposed by the JCHR have been considered specifically by Parliament in debates and by courts in litigation. Neither Parliament nor the courts agreed that these changes were necessary, and the Government do not agree with the JCHR in that context.
	I think I have spoken for long enough. The noble Lord, Lord Carlile, put it bluntly in his most recent annual report:
	"In stark terms, the potential cost of losing control orders is that the United Kingdom would be more vulnerable to a successful terrorist attack".
	I agree. I think they are the least worst option, and I have no doubt that the director-general of the Security Service and the intelligence services commissioners would not have agreed if they did not believe that that was the case. I believe that the country would quite rightly never forgive us if we removed control orders and it had that impact on the country. I therefore have no hesitation in commending this order to the House.

Baroness Hamwee: My Lords, I am grateful to all speakers in this debate. I say to the noble and learned Lord, Lord Lloyd, that if my amendment fails, these Benches will be very happy to support his.
	I thought at many times that the logic of what the noble Baroness, Lady Neville-Jones, said would mean that she would support the Government. Perhaps it was a half-and-half speech and, in her eyes, we have drawn, which leads to the proposed abstention. I thank the Minister for the assurances that he gave. I take what he said very seriously, and I by no means dismiss the points that he made. He reminded me of the 2,000 people under surveillance. I cannot resist commenting that that suggests to me that the resources required for a handful more cannot be quite as great as we are being led to believe.
	We take terrorism very seriously but our objections, which I will not go through again in view of the time, have not been met. However, I shall comment on one point that the Minister made in his winding-up speech. It sounds a little as though the Government have fallen into a temptation to impose control orders not on the balance of probabilities. Then if, or indeed when, conditions are broken, an offence is automatically committed, which means that the individual-against whom there is no evidence that can be used-finds himself imprisoned under that parallel route.
	We have taken a good deal of time, but it is right that we do so. We are not persuaded. I wish to test the opinion of the House.

Division on Baroness Hamwee's amendment.
	Contents 49; Not-Contents 57.
	Amendment disagreed.

Amendment to the Motion
	 Moved by Lord Lloyd of Berwick
	As an amendment to the Motion in the name of Lord West of Spithead, at end to insert "but this House regrets that, following the judgment of the House of Lords in Secretary of State for the Home Department v AF and the subsequent revocation of AF's control order on the ground that he did not have a fair hearing, Her Majesty's Government have not, in the five years since the Act was passed, found a means of dealing with suspected terrorists that is just and effective; and calls on the Government to introduce primary legislation to limit the duration of control orders to a maximum of one year, without renewal".

Lord Lloyd of Berwick: My Lords, in moving this amendment, I perhaps should inform the House that I will also be calling a Division. I have nothing whatever to add on the first part of my amendment, which has been covered earlier in the debate. But I should like to add a few words on why I am calling on the Government, whoever they may prove to be, to limit control orders to one year without renewal.
	In his third report, the noble Lord, Lord Carlile, pointed out that control orders were never intended to continue indefinitely. He recommended that they could and should be limited to a period of two years. His reason was that, after two years, the controlee was unlikely to be of much use to his fellow terrorists. The noble Lord, Lord Carlile, as we have learnt this evening, is-if I may use a nautical metaphor-the sheet anchor of the Government's case; yet the Government rejected altogether his very sensible suggestion without giving any reason. I agree with the reasoning of the noble Lord, Lord Carlile, on that-if not on everything else-and I suggest that it would apply equally to my amendment, which proposes that a controlee should not be kept for more than one year as a maximum. If the person has been out of circulation for that long, he will be of very little use to his fellow terrorists.
	That brings me to the stance of the Official Opposition. I can understand why they abstained on the amendment of the noble Baroness, Lady Hamwee, although I greatly wish that they had not. However, what is their difficulty with my amendment? They must surely regret, as I do, that the Government have not done more in the past five years to find a substitute for control orders. Why do they now not stand up and say so? I remind the noble Baroness, Lady Neville-Jones, that her predecessor said as long ago as 24 February 2007 that the Conservative Party would vote against any subsequent renewal of the control order legislation-that is, in 2008 and subsequent years-yet they have not done so. It is now 2010, and I suggest that it is high time that they put into practice, in relation at least to my amendment tonight, what they have refused to do in the past two years. I beg to move.

Lord West of Spithead: My Lords, as I mentioned in my previous summing-up, our position is that control orders should be imposed for as short a time as possible, commensurate with the risk that is posed by the person in question. The High Court has supported our view.
	When the new Labour Government come in, I shall advise them that we should review and consolidate all counterterrorism legislation. I am sure that control orders would be part of that. However, it would be wrong at the moment to have an arbitrary end point to an order; it surely has to be based on the risk that the individual poses. As I said, we would be putting the country at risk if we did not do that.

Lord Lloyd of Berwick: I wish to test the opinion of the House.

Division on Lord Lloyd of Berwick's amendment.
	Contents 50; Not-Contents 43.
	Amendment agreed.

Motion, as amended, agreed.
	House adjourned at 9.49 pm.